EXHIBIT 6
$620,000,000
CREDIT AGREEMENT
Dated as of January 30, 1998
Among
MARRIOTT INTERNATIONAL, INC. (to be renamed
SODEXHO MARRIOTT SERVICES, INC.)
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
SOCIETE GENERALE and ▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
as Arrangers
and
SOCIETE GENERALE
as Administrative Agent
and
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
as Documentation Agent
T A B L E O F C O N T E N T S
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms............................................ 1
1.02. Computation of Time Periods...................................... 15
1.03. Accounting Terms and Determinations.............................. 15
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCE
2.01. The Advance...................................................... 16
2.02. Making the Advances.............................................. 16
2.03. Repayment of Advances............................................ 17
2.04. Termination or Reduction of the Facility......................... 17
2.05. Prepayments...................................................... 17
2.06. Interest......................................................... 17
2.07. Fees............................................................. 18
2.08. Conversion and Continuation of Advances.......................... 18
2.09. Increased Costs, Etc............................................. 19
2.10. Payments and Computations........................................ 20
2.11. Taxes............................................................ 21
2.12. Sharing of Payments, Etc......................................... 23
2.13. Use of Proceeds.................................................. 24
2.14. Defaulting Lenders............................................... 24
2.15. Regulation D Compensation........................................ 26
2.16. Base Rate Advances Substituted for Affected Eurodollar Rate
Advances....................................................... 26
2.17. Replacement of Certain Lenders................................... 26
ARTICLE III
CONDITIONS OF LENDING
3.01. Conditions Precedent to Closing.................................. 27
3.02. Conditions Precedent to Borrowing................................ 27
3.03. Determinations Under Section 3.02................................ 31
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrower................... 32
ARTICLE V
COVENANTS OF THE BORROWER
5.01. Affirmative Covenants............................................ 36
5.02. Negative Covenants............................................... 38
5.03. Reporting Requirements........................................... 40
5.04. Financial Covenants.............................................. 42
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default................................................ 44
ARTICLE VII
THE ADMINISTRATIVE AGENT
7.01. Authorization and Action......................................... 46
7.02. Administrative Agent's Reliance, Etc............................. 46
7.03. Societe Generale and Affiliates.................................. 47
7.04. Lender Party Credit Decision..................................... 47
7.05. Indemnification.................................................. 47
7.06. Successor Agents................................................. 47
ARTICLE VIII
MISCELLANEOUS
8.01. Amendments, Etc.................................................. 48
8.02. Notices, Etc..................................................... 48
8.03. No Waiver; Remedies.............................................. 49
8.04. Costs and Expenses............................................... 49
8.05. Right of Set-off................................................. 51
8.06. Binding Effect................................................... 51
8.07. Assignments and Participations................................... 51
8.08. Execution in Counterparts........................................ 53
8.09. Confidentiality.................................................. 53
8.10. No Reliance on Margin Stock...................................... 54
8.11. Jurisdiction, Etc................................................ 54
8.12. Governing Law.................................................... 54
8.13. Waiver of Jury Trial............................................. 54
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of January 30, 1998 among MARRIOTT
INTERNATIONAL, INC., a Delaware corporation, (to be renamed SODEXHO MARRIOTT
SERVICES, INC., the "Borrower"), the banks, financial institutions and other
institutional lenders listed on the signature pages hereof as the Initial
Lenders (the "Initial Lenders"), SOCIETE GENERALE ("Societe Generale"), as
administrative agent (together with any successor appointed pursuant to
Article VII, the "Administrative Agent") for the Lender Parties (as
hereinafter defined), and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
("▇▇▇▇▇▇"), as the documentation agent (the "Documentation Agent") for the
Lender Parties, with SOCIETE GENERALE and ▇.▇. ▇▇▇▇▇▇ SECURITIES INC., as
arrangers (the "Arrangers").
PRELIMINARY STATEMENTS:
(1) Pursuant to the Transaction Documents (as hereinafter
defined), the Borrower will (i) distribute (the "Spinoff") to its shareholders
all of its, and its Subsidiaries' (as hereinafter defined), businesses other
than the Foodservice Business, (ii) the Guarantor (as hereinafter defined)
will transfer (the "Canadian Subsidiary Transfer") the shares of Sodexho
Financiere du Canada, Inc. ("Sodexho Canada"), its Canadian Subsidiary engaged
in the food service and facilities management business, to the Borrower, (iii)
the Guarantor will pay (the "Cash Payment") $304,000,000 to the Borrower, (iv)
International Catering Corporation, a Delaware corporation and a wholly owned
indirect Subsidiary of the Guarantor ("ICC"), will merge (the "Merger") with
Merger Corp. (as hereinafter defined), a newly formed, wholly owned Subsidiary
of the Borrower, with ICC being the surviving corporation and (v) the
Guarantor will receive, as consideration in respect of the Cash Payment, the
Merger and the Canadian Subsidiary Contribution, not less than 40.1% and not
more than 49.9% of the common stock of the Borrower.
(2) Sodexho Marriott Operations, Inc., a Delaware corporation
("Sodexho Operations"), has been organized as a wholly owned Subsidiary of the
Borrower in order to facilitate the transactions contemplated by the
Transaction Documents and to obtain the financing contemplated herein. At the
time of the Merger, the Borrower will contribute (the "Subsidiary
Contribution") all of the capital stock and other Investments (as hereinafter
defined) held by the Borrower in its Subsidiaries (other than Sodexho Canada,
Marriott Corporation of Canada, Ltd. ("MMS Canada"), New Marriott and
Subsidiaries of New Marriott) to Sodexho Operations. The Spinoff, the
Canadian Subsidiary Contribution, the Cash Payment, the Merger and the
Subsidiary Contribution are herein referred to, collectively, as the
"Transaction".
(3) The Borrower has requested that, in connection with the
Transaction, the Lender Parties lend to it up to $620,000,000 to refinance
certain Existing Debt (as hereinafter defined) of the Borrower and ICC and
their respective Subsidiaries and to pay transaction fees and expenses. The
Lender Parties have indicated their willingness to agree to lend such amount
on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent with Societe
Generale at its office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ABA No. ▇▇▇▇▇▇▇▇▇, Attention: Sodexho Marriott Services (A/C
#9042806).
"Advance" has the meaning specified in Section 2.01.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person. For
purposes of this definition, the term "control" (including the terms
"controlling", "controlled by" and "under common control with") of a Person
means the possession, direct or indirect, of the power to vote 10% or more
of the Voting Stock of such Person or to direct or cause the direction of
the management and policies of such Person, whether through the ownership
of Voting Stock, by contract or otherwise; provided that, from and after
the consummation of the Transaction, none of the Borrower or any of its
Subsidiaries shall be an Affiliate of New Marriott or any of its
Subsidiaries or Affiliates unless New Marriott or any of its Subsidiaries
or Affiliates purchases or otherwise acquires more than 10% of the Voting
Stock of the Borrower or any of its Subsidiaries after the date hereof.
"Amendment Agreement" means the Amendment Agreement dated as of
January 28, 1998 among the Borrower, the Guarantor, Merger Corp., New
Marriott and ICC.
"Applicable Lending Office" means, with respect to each Lender
Party, such Lender Party's Domestic Lending Office in the case of a Base
Rate Advance and such Lender Party's Eurodollar Lending Office in the case
of a Eurodollar Rate Advance.
"Applicable Margin" means, with respect to Eurodollar Rate
Advances (i) on any day during the 12-month period commencing on the
Funding Date (as hereinafter defined), 0.45% per annum, and (ii) on any day
thereafter, the percentage per annum set forth below corresponding to (A)
the rating issued on or most recently prior to such day by S&P for the
Guarantor's senior unsecured long-term debt or, if such rating is
unavailable, the rating assigned by S&P to the Guarantor's unsecured
"implied senior debt" or the "corporate credit rating" (as the case may
be), as notified in writing to the Guarantor by S&P, or (B) if no such
rating is available from S&P, the rating issued on or most recently prior
to such day by ▇▇▇▇▇'▇ for the Guarantor's senior unsecured long-term debt
or, if such rating is unavailable, the rating assigned by ▇▇▇▇▇'▇ to the
Guarantor's unsecured "implied senior debt", as notified in writing to the
Guarantor by ▇▇▇▇▇'▇. If no such rating is available from S&P or ▇▇▇▇▇'▇,
the Applicable Margin for such day shall be at Level 1.
======================================================
S&P/▇▇▇▇▇'▇ Credit Rating Percentage
------------------------------------------------------
▇▇▇▇▇ ▇
▇-/▇▇ or greater 0.35%
------------------------------------------------------
▇▇▇▇▇ ▇
▇▇▇▇/▇▇▇▇ 0.45%
------------------------------------------------------
Level 3
BBB/Baa2 0.625%
------------------------------------------------------
▇▇▇▇▇ ▇
▇▇▇-/▇▇▇▇ ▇.▇▇▇%
------------------------------------------------------
▇▇▇▇▇ ▇
▇▇▇/▇▇▇ or less 1.125%
======================================================
"Arrangers" has the meaning specified in the recital of parties to
this Agreement.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in accordance with Section 8.07 and in substantially
the form of Exhibit C hereto.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by Societe
Generale in New York, New York, from time to time, as Societe
Generale's prime rate; and
(b) 1/2 of one percent per annum above the Federal Funds
Rate.
"Base Rate Advance" means an Advance that bears interest at the
Base Rate pursuant to the applicable Notice of Borrowing, the applicable
Notice of Interest Rate Election, Section 2.09(c) or Section 2.16.
"Base Transaction Documents" has the meaning specified in Section
3.02(a).
"Borrower" has the meaning specified in the recital of parties to
this Agreement.
"Borrower's Account" means the account of the Borrower maintained
by the Borrower with Societe Generale at its office at 1221 Avenue of the
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇.
"Borrowing" means a borrowing consisting of simultaneous Advances
made by the Lenders on the Funding Date.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on which
dealings in U.S. dollar deposits are carried on in the London interbank
market.
"Canadian Subsidiary Transfer" has the meaning specified in
Preliminary Statement (1).
"Capitalized Leases" means all leases that have been or should be,
in accordance with GAAP, recorded as capitalized leases.
"Cash Payment" has the meaning specified in Preliminary Statement
(1).
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"Closing Date" means the date on which all conditions precedent
set forth in Section 3.01 shall have been satisfied, but in no event later
than January 30, 1998.
"Commitment" means, with respect to any Lender at any time, the
amount set forth opposite such Lender's name on Schedule I hereto under the
caption "Commitment" or, if such Lender has entered into one or more
Assignments and Acceptances, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 8.07(d) as such
Lender's "Commitment," as such amount may be reduced at or prior to such
time pursuant to Section 2.04.
"Confidential Information" means any information that the
Guarantor, the Borrower or any of their respective Subsidiaries,
Affiliates, advisors or agents furnishes to the Administrative Agent or any
Lender Party other than any such information that is or becomes generally
available to the public or that is or becomes available to the
Administrative Agent or such Lender Party from a source other than the
Guarantor, the Borrower or any of their respective Subsidiaries,
Affiliates, advisors or agents that is not, to the best of the
Administrative Agent's or such Lender Party's knowledge, acting in
violation of a confidentiality agreement with the Guarantor, the Borrower
or any of their respective Subsidiaries, Affiliates, advisors or agents.
"Consents Side Letter" means the letter dated as of October 2,
1997 among the Borrower, the Guarantor, Merger Corp., New Marriott and ICC.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Consolidated Debt" means, on any date, Debt of the Borrower and
its Subsidiaries on such date (other than Debt referred to in clause (i) of
the definition of "Debt"), determined on a Consolidated basis.
"Consolidated Interest Expense" means, for any period,
Consolidated interest expense of the Borrower and its Subsidiaries for such
period (excluding any such amounts not payable on a current basis in cash
and any amounts attributable to the amortization of deferred financing
costs or other capitalized fees or expenses paid prior to the Funding Date
or incurred in connection with the Transaction, the prepayment of any
Marriott Bonds or the incurrence of the Senior Debt or any Debt hereunder),
net of Consolidated interest income of the Borrower and its Subsidiaries
for such period.
"Contingent Obligation" of any Person means any obligation,
contingent or otherwise, of such Person directly or indirectly guaranteeing
any Debt of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt (whether arising by virtue of partnership
arrangements, by virtue of an agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise), (ii) to reimburse a bank for amounts
drawn under a letter of credit for the purpose of paying such Debt or (iii)
entered into for the purpose of assuring in any other manner the holder of
such Debt of the payment thereof or to protect such holder against loss in
respect thereof (in whole or in part), provided that the term "Contingent
Obligation" shall not include endorsements for collection or deposit in the
ordinary course of business.
"Conversion", "Convert" and "Converted" each refer to a conversion
of Advances of one Type into Advances of the other Type pursuant to Section
2.08 or 2.09.
"Debt" of any Person means, at any date, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations of
such Person evidenced by bonds, debentures, notes or other similar
instruments, (c) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable
arising in the ordinary course of business, (d) all obligations of such
Person as lessee which are capitalized in accordance with GAAP, (e) all
obligations, contingent or otherwise, of such Person to reimburse any bank
or other Person in respect of a letter of credit or similar instrument, (f)
all Debt secured by a Lien on any asset of such Person, whether or not such
Debt is otherwise an obligation of such Person, (g) all Contingent
Obligations of such Person in respect of Debt of another Person (each such
Contingent Obligation to constitute Debt in an amount equal to the lesser
of the amount of such other Person's Debt subject to such Contingent
Obligation and the maximum amount payable under such Contingent
Obligation), (h) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any Hybrid Capital
Stock of such Person or any other Person, valued, in the case of Redeemable
Hybrid Capital Stock, at the greater of its voluntary or involuntary
liquidation preference, and (i) all obligations in respect of Hedge
Agreements.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"Defaulted Advance" means, with respect to any Lender Party at any
time, the portion of any Advance required to be made by such Lender Party
to the Borrower pursuant to Section 2.01 or 2.02 at or prior to such time
which has not been made by such Lender Party or by the Administrative Agent
for the account of such Lender Party pursuant to Section 2.02(d) as of such
time. In the event that a portion of a Defaulted Advance shall be deemed
made pursuant to Section 2.14(a), the remaining portion of such Defaulted
Advance shall continue to be considered a Defaulted Advance.
"Defaulted Amount" means, with respect to any Lender Party at any
time, any amount required to be paid by such Lender Party to the
Administrative Agent or any other Lender Party hereunder or under any other
Loan Document at or prior to such time which has not been so paid as of
such time, including, without limitation, any amount required to be paid by
such Lender Party to (a) the Administrative Agent pursuant to Section
2.02(d) to reimburse the Administrative Agent for the amount of any Advance
made by the Administrative Agent for the account of such Lender Party, (b)
any other Lender Party pursuant to Section 2.12 to purchase any
participation in Advances owing to such other Lender Party and (c) the
Administrative Agent pursuant to Section 7.05 to reimburse the
Administrative Agent for such Lender Party's ratable share of any amount
required to be paid by the Lender Parties to the Administrative Agent as
provided therein. In the event that a portion of a Defaulted Amount shall
be deemed paid pursuant to Section 2.14(b), the remaining portion of such
Defaulted Amount shall continue to be considered a Defaulted Amount.
"Defaulting Lender" means, at any time, any Lender Party that, at
such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall
take any action or be the subject of any action or proceeding of a type
described in Section 6.01(e).
"Disclosed Litigation" has the meaning specified in Section
3.02(j).
"Distribution Agreement" means the Distribution Agreement dated as
of September 30, 1997 between the Borrower and New Marriott, as amended by
the Amendment Agreement.
"Domestic Lending Office" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party, as the case may be, or such
other office of such Lender Party as such Lender Party may from time to
time specify to the Borrower and the Administrative Agent.
"EBITDA" means, for any period (a) Consolidated net income (or net
loss) of the Borrower and its Subsidiaries for such period (after
eliminating the effect of any non-Foodservice Business discontinued
operations incurred during the period prior to the Funding Date or to be
allocated to New Marriott as contemplated by the Distribution Agreement)
plus (b) the sum of each of the following items to the extent deducted in
determining such Consolidated net income: (i) interest expense for such
period less interest income for such period, (ii) net income tax expense
for such period, (iii) depreciation expense for such period, (iv)
amortization expense for such period, (v) Integration Costs deducted for
such period in an amount not to exceed, in aggregate for all such
deductions taken over the term of the Facility, $45,000,000 less the amount
of such costs classified by the Borrower's independent public accountants,
and recorded, as capitalized expenses, (vi) the net amount of (A)
extraordinary non-cash losses for such period less (B) extraordinary
non-cash gains, for such period, (vii) non-cash non-recurring items for
such period and (viii) other non-cash items for such period, in each case
determined on a Consolidated basis and in accordance with GAAP for such
period.
"Eligible Assignee" means (i) a Lender; (ii) a financial
institution or other entity engaged in the financing of loans and accounts
which is an Affiliate of a Lender; and (iii) any other Person approved by
the Administrative Agent and, unless an Event of Default shall have
occurred and be continuing, the Borrower, such approval not to be
unreasonably withheld or delayed; provided, however, that neither any Loan
Party nor any Affiliate of a Loan Party shall qualify as an Eligible
Assignee under this definition.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of liability
or potential liability, investigation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, any Environmental
Permit or Hazardous Material or arising from alleged injury to the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response, remedial
or other actions or damages and (b) by any governmental or regulatory
authority or third party for damages, contribution, indemnification, cost
recovery, compensation or injunctive relief.
"Environmental Law" means any applicable federal, state, local or
foreign statute, law, ordinance, rule, regulation, code, order, writ,
judgment, injunction, decree or judicial or agency interpretation, policy
or guidance relating to pollution or protection of the environment, or the
effect of the environment on human health or safety, including, without
limitation, those relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV
of ERISA is a member of the controlled group of the Borrower, or under
common control with the Borrower, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA (taking into account subsection (2) of such Section) are
met with respect to a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9),
(10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected
to occur with respect to such Plan within the following 30 days; (b) the
application for a minimum funding waiver with respect to a Plan; (c) the
provision by the administrator of any Plan of a notice of intent to
terminate such Plan, pursuant to Section 4041(a)(2) of ERISA in a distress
termination pursuant to ERISA Section 4041(c) (including any such notice
with respect to a plan amendment referred to in Section 4041(e) of ERISA);
(d) the cessation of operations at a facility of the Borrower or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA; (e)
the withdrawal by the Borrower or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial employer,
as defined in Section 4001(a)(2) of ERISA; (f) the conditions for
imposition of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan requiring
the provision of security to such Plan pursuant to Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings to terminate a Plan pursuant
to Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified in Regulation
D of the Board of Governors of the Federal Reserve System, as in effect
from time to time.
"Eurodollar Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party (or, if no such
office is specified, its Domestic Lending Office), or such other office of
such Lender Party as such Lender Party may from time to time specify to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period, an interest rate
per annum equal to the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor
page) as the London interbank offered rate for deposits in U.S. dollars at
11:00 A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to Societe Generale's
Eurodollar Rate Advance to which such Interest Period is to apply (or, if
Societe Generale shall not have such a Eurodollar Rate Advance, $1,000,000)
and for a period equal to such Interest Period (provided that if for any
reason such rate is not available, the term "Eurodollar Rate" shall mean,
for any Interest Period, the rate per annum (rounded upward, if necessary,
to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the
London interbank offered rate for deposits in U.S. dollars at approximately
11:00 A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on Reuters Screen LIBO Page,
the applicable rate shall be the arithmetic mean of all such rates;
provided further that, in the case of the initial Interest Period with
respect to any Advance, if such period is not an exact period of 1, 2 ,3,
6, 9 or 12 months, the Eurodollar Rate shall mean the interest rate per
annum determined by the Administrative Agent to be the arithmetic mean
(rounded upwards, if necessary, to the nearest 1/16 of 1%) of the rates at
which deposits in U.S. dollars approximately equal in principal amount to
the Advances of the Eurodollar Reference Banks, in their capacities as
Lenders, included in such initial Advance and for a maturity comparable to
such Interest Period are offered to the principal London offices of each of
the Eurodollar Reference Banks in immediately available funds in the London
interbank market as of 11:00 A.M. (London time) on the day that is two
Business Days prior to the first day of such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest at
a rate based on a Eurodollar Rate pursuant to the applicable Notice of
Borrowing or Notice of Interest Period Election.
"Eurodollar Rate Reserve Percentage" means for any day, the
percentage which is in effect on such day under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York
City with respect to liabilities consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on Eurodollar
Rate Advances is determined).
"Eurodollar Reference Banks" means the principal London office of
each of Societe Generale, ▇▇▇▇▇▇, Citibank, N.A., or such other Lender or
Lenders as from time to time may be agreed upon between the Borrower and
the Administrative Agent.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Debt" has the meaning specified in Section 4.01(x).
"Facility" means the facility provided by the Lenders hereunder
for the making of Advances to the Borrower as provided herein.
"Federal Funds Rate" means, for any day, the rate per annum equal
to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
that is a Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fiscal Quarter" has the meaning specified in Section 1.03(b).
"Fiscal Year" means the fiscal accounting period of 52 or 53 weeks
of the Borrower and its Consolidated Subsidiaries ending closest to
December 31 or, if the Borrower changes its fiscal year end to "August 31",
closest to August 31 in any calendar year.
"Foodservice Business" means the businesses conducted by the
Borrower and its Affiliates which consist of (i) providing food and
facilities management services to businesses and industrial operations,
health care facilities, schools and universities, (ii) providing commercial
laundry services, (iii) managing the Retained Conference Centers (as
defined in the Distribution Agreement) and (iv) business undertaken
pursuant to the NANA Joint Ventures (as defined in the Distribution
Agreement), each of the foregoing as and to the extent conducted through
the Borrower's Marriott Management Services strategic business unit
(referred to in the Distribution Agreement).
"Funding Date" means the date on which the Borrowing occurs
following satisfaction of all of the conditions precedent set forth in
Section 3.02 but in no event later than June 30, 1998.
"GAAP" means generally accepted accounting principles as in effect
from time to time in the United States, applied on a basis consistent
(except for changes concurred in by the Borrower's independent public
accountants) with the most recent audited consolidated financial statements
of the Borrower and its Consolidated Subsidiaries delivered to the Lenders.
"Group of Advances" means, at any time, a group of Advances
consisting of (i) all Advances which are Base Rate Advances at such time,
(ii) all Eurodollar Rate Advances having the same Interest Period at such
time, provided that, if an Advance of any particular Lender is Converted to
or made as a Base Rate Advance pursuant to Section 2.09 or 2.16, such
Advance shall be included in the same Group or Groups of Advances from time
to time as it would have been in if it had not been so Converted or made.
"Guaranty" means the Guaranty specified in Section 3.02(k)(xv).
"Guarantor" means Sodexho Alliance, S.A., a societe anonyme
organized under the laws of France, and its successors.
"Hazardous Materials" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas and
(b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Hybrid Capital Stock" means, with respect to any Person, capital
stock of such Person, the dividends in respect of which are deductible by
such Person for United States federal income tax purposes.
"ICC" has the meaning specified in Preliminary Statement (1).
"Indemnified Consent Exposure" means the exposure resulting from
the absence of certain third-party consents and approvals required with
respect to the Transaction that is indemnified by New Marriott pursuant to
the Distribution Agreement.
"Indemnified Party" has the meaning specified in Section 8.04(b).
"Indemnity Support Agreement" means the Indemnity Support
Agreement referred to in the Consents Side Letter, between the Borrower and
New Marriott in connection with the indemnification of the Borrower for the
Indemnified Consent Exposure.
"Information Memorandum" means the information memorandum dated
December, 1997 used by the Arrangers in connection with the syndication of
the Commitments.
"Initial Lenders" has the meaning specified in the recital of
parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount, if
any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18)
of ERISA.
"Integration Costs" means costs incurred in connection with the
combination of the businesses of Marriott Management Services Corp., a New
York corporation, ICC, Sodexho Canada, MMS Canada and their respective
Subsidiaries and Affiliates.
"Interest Period" means, for each Eurodollar Rate Advance, the
period commencing on the date of borrowing specified in the applicable
Notice of Borrowing or the date specified in the applicable Notice of
Interest Rate Election and ending one, two, three, six, or, to the extent
available to each Lender, nine or twelve months thereafter, as the Borrower
may elect in such Notice; provided, however, that:
(a) the first Interest Period in respect of any Advances
that are Eurodollar Rate Advances shall end on the last Business
Day of the first, second, third, sixth or, to the extent available
to each Lender, ninth or twelfth, calendar month after the month
in which such Advance was made, as elected by the Borrower in the
applicable Notice of Borrowing;
(b) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day
of such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day; and
(c) whenever the first day of any Interest Period occurs
on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar
month that succeeds such initial calendar month by the number of
months equal to the number of months in such Interest Period),
such Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Investment" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any capital stock or other
ownership or profit interest, warrants, rights, options, obligations or
other securities of such Person, any capital contribution to such Person or
any other investment in such Person, including, without limitation, any
arrangement pursuant to which the investor incurs Debt of the types
referred to in clause (f) or (g) of the definition of "Debt" in respect of
such Person, but excluding any demand deposit maintained with any Person.
"Lender Party" means any Lender.
"Lenders" means the Initial Lenders and each Person that shall
become a Lender hereunder pursuant to Section 8.07.
"Leverage Ratio" means, as of the last day of any Fiscal Quarter
of the Borrower, the ratio of Consolidated Debt as at such day to
Consolidated EBITDA for the period of four consecutive Fiscal Quarters of
the Borrower ending on such day.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"Loan Documents" means this Agreement, the Notes, the Guaranty and
the agreement related to the fees referred to in Section 2.07, in each case
as amended or otherwise modified from time to time.
"Loan Parties" means the Borrower and the Guarantor.
"▇▇▇▇▇" means the Liquid Yield Option Notes due 2011 of the
Borrower issued pursuant to the Indenture dated as of March 25, 1996
between the Borrower and The Bank of New York, as indenture trustee,
together with all supplemental indentures executed thereunder.
"▇▇▇▇▇ Allocation Agreement" means the ▇▇▇▇▇ Allocation Agreement
to be entered into by the Borrower, New Marriott and the Guarantor,
substantially in the form of the draft dated December 8, 1997.
"Margin Stock" has the meaning specified in Regulation U.
"Marriott Bond Tender Period" has the meaning specified in Section
2.01(a) of the Senior Debt Credit Agreement.
"Marriott Bonds" means (i) the notes in the principal amount of
$600,000,000 issued pursuant to the Indenture dated as of December 1, 1993
between the Borrower and Chemical Bank, as trustee, and (ii) the notes in
the principal amount of $120,000,000 issued pursuant to the Indenture dated
as of October 1, 1995 among RHG Finance, as issuer, Renaissance Hotel Group
N.V., as guarantor, the Borrower, as additional guarantor, and the First
National Bank of Chicago, as indenture trustee, in each case, as amended
from time to time.
"Material Adverse Change" means any material adverse change in the
business, financial condition, results of operations or prospects of the
Borrower and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a)
the business, financial condition, results of operations or prospects of
the Borrower and its Subsidiaries taken as a whole, (b) the rights and
remedies of the Administrative Agent and the Lenders under any Loan
Document or (c) the ability of any Loan Party to perform its Obligations
under any Loan Document to which it is or is to be a party.
"Material Contract" means, with respect to any Person, each
contract to which such Person is a party involving aggregate consideration
payable to or by such Person of an amount equal to not less than 2% of
Consolidated sales of the Borrower and its Subsidiaries in any year or
otherwise material to the business, financial condition or results of
operations of such Person.
"Merger" has the meaning specified in Preliminary Statement (1).
"Merger Agreement" means the Agreement and Plan of Merger dated as
of September 30, 1997 among the Borrower, the Guarantor, Merger Corp., New
Marriott and ICC as amended by the Amendment Agreement.
"Merger Corp." means Marriott-ICC Merger Corp., a Delaware
corporation.
"MMS Canada" has the meaning specified in Preliminary Statement
(2).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"▇▇▇▇▇▇" has the meaning specified in the recital of parties to
this Agreement.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA which is a defined benefit plan within the
meaning of Section 3(35) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or has
within any of the preceding five plan years made or accrued an obligation
to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
the Borrower or any ERISA Affiliate and at least one Person other than the
Borrower and the ERISA Affiliates or (b) was so maintained and in respect
of which the Borrower or any ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"New Marriott" means New Marriott MI, Inc., a Delaware corporation
(to be renamed Marriott International, Inc. after the Spinoff).
"Note" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from
the Advance made by such Lender.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Interest Rate Election" has the meaning specified in
Section 2.08.
"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether or
not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
disputed, undisputed, legal, equitable, secured or unsecured, and whether
or not such claim is discharged, stayed or otherwise affected by any
proceeding referred to in Section 6.01(f). Without limiting the generality
of the foregoing, the Obligations of the Loan Parties under the Loan
Documents include (a) the obligation to pay principal, interest, charges,
expenses, fees, attorneys' fees and disbursements, indemnities and other
amounts payable by any Loan Party under any Loan Document and (b) the
obligation of any Loan Party to reimburse any amount in respect of any of
the foregoing that any Lender Party, in its sole discretion, may elect to
pay or advance on behalf of such Loan Party.
"Omnibus Restructuring Agreement" means the Omnibus Restructuring
Agreement dated as of September 30, 1997 among the Borrower, the Guarantor,
Merger Corp., New Marriott and ICC, as amended by the Amendment Agreement.
"Other Taxes" has the meaning specified in Section 2.11(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means each of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under Section
5.01(b) hereof; (b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and other similar
Liens arising in the ordinary course of business securing obligations that
are not overdue for a period of more than 30 days; (c) pledges or deposits
to secure obligations under workers' compensation laws or similar
legislation or to secure public or statutory obligations; (d) easements,
rights of way and other encumbrances on title to real property that do not
render title to the property encumbered thereby unmarketable or materially
adversely affect the use of such property for its present purposes; (e)
Liens in respect of judgments not constituting an Event of Default under
Section 6.01(g); and (f) Liens on inventory or equipment arising under
Article 2 of the Uniform Commercial Code or any similar provision of
applicable law securing payment of the purchase price of such inventory or
equipment, provided that such Lien does not extend to any asset other than
such inventory and equipment and the obligation to pay such purchase price
does not constitute Debt, and provided further that neither the Borrower
nor any of its Subsidiaries shall have executed a Uniform Commercial Code
financing statement (Form UCC-1 or a comparable form) in connection with
any such Lien on inventory.
"Person" means an individual, partnership, corporation (including
a business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Process Agent" has the meaning specified in Section 3.02(k)(xxii).
"Proxy Statement" means the Notice of Special Meeting of
Stockholders and related Preliminary Proxy Statement filed with the
Securities and Exchange Commission on January 12, 1998 by the Borrower and
all related documents, schedules, annexes and attachments filed therewith.
"Redeemable" means, with respect to any capital stock or other
ownership or profit interest, Debt or other right or Obligation, any such
right or Obligation that (a) the issuer has undertaken to redeem at a fixed
or determinable date or dates, whether by operation of a sinking fund or
otherwise, or upon the occurrence of a condition not solely within the
control of the issuer or (b) is redeemable at the option of the holder.
"Register" has the meaning specified in Section 8.07(d).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Related Documents" means the Transaction Documents, the Senior
Debt Documents and the Tax Agreement.
"Required Lenders" means at any time Lenders owed or holding at
least 51% of the sum of (a) the aggregate principal amount of the Advances
outstanding at such time and (b) the aggregate unused Commitments under the
Facility at such time; provided, however, that if any Lender shall be a
Defaulting Lender at such time, there shall be excluded from the
determination of Required Lenders at such time (A) the aggregate principal
amount of the Advances owing to such Lender and outstanding at such time
and (B) the unused Commitment of such Lender at such time.
"Requisite Lenders" means at any time Lenders owed or holding at
least 66 2/3% of the sum of (a) the aggregate principal amount of the
Advances outstanding at such time and (b) the aggregate unused Commitments
under the Facility at such time; provided, however, that if any Lender
shall be a Defaulting Lender at such time, there shall be excluded from the
determination of Requisite Lenders at such time (A) the aggregate principal
amount of the Advances owing to such Lender and outstanding at such time
and (B) the unused Commitment of such Lender at such time.
"Responsible Officer" means, with respect to any Loan Party, any
executive officer of such Loan Party.
"Retained Marriott Bonds" means any Marriott Bonds that, on the
last day of the Marriott Bond Tender Period, shall not have been tendered
and that are retained as obligations of the Borrower.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Senior Debt" means the Debt under the Senior Debt Credit
Agreement or any replacement thereof.
"Senior Debt Credit Agreement" means the $735,000,000 Credit
Agreement dated as of the date hereof among Sodexho Operations, as
borrower, the Borrower, as Parent Guarantor, ▇▇▇▇▇▇ and Societe Generale,
as initial Issuing Banks, the lenders party thereto, and ▇▇▇▇▇▇, as
Documentation Agent and as Administrative Agent (as the same may be
amended, supplemented or otherwise modified from time to time in accordance
with its terms).
"Senior Debt Documents" means the Senior Debt Credit Agreement,
together with the Notes, the Collateral Documents and the Guarantees (each
as defined therein) executed in connection therewith.
"Shareholders' Equity" means common stock, additional paid-in
capital, retained earnings and treasury stock of the Borrower and its
Subsidiaries on a Consolidated basis.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and no Person other than the Borrower and
the ERISA Affiliates or (b) was so maintained and in respect of which the
Borrower or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"Societe Generale" has the meaning specified in the recital of
parties to this Agreement.
"Sodexho Canada" has the meaning specified in Preliminary
Statement (1).
"Sodexho Operations" has the meaning specified in Preliminary
Statement (2).
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond
such Person's ability to pay such debts and liabilities as they mature and
(d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in
the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual
or matured liability.
"Spinoff" has the meaning specified in Preliminary Statement (1).
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or in
which) more than 50% of the issued and outstanding capital stock or other
ownership interests having ordinary voting power to elect a majority of the
Board of Directors or other persons performing similar functions
(irrespective of whether at the time capital stock or other ownership
interests of any other class or classes shall or might have voting power
upon the occurrence of any contingency) is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries. Except as otherwise expressly provided herein, neither New
Marriott nor any Person that is, will be or will become a Subsidiary of New
Marriott upon the consummation of the Transaction shall be a Subsidiary of
the Borrower for any purpose under this Agreement.
"Subsidiary Contribution" has the meaning specified in Preliminary
Statement (2).
"Substantial Subsidiary" means, on any date, each Subsidiary of
the Borrower (i) whose revenues for the four Fiscal Quarters of the
Borrower most recently ended on or prior to such date equaled or exceeded
2% of the Consolidated revenues of the Borrower and its Subsidiaries for
such period or (ii) whose assets as of such date equaled or exceeded 2% of
the Consolidated assets of the Borrower and its Subsidiaries as of such
date.
"Tax Agreement" means the Tax Sharing and Indemnification
Agreement to be entered into by the Borrower, the Guarantor and New
Marriott in respect of certain tax matters in connection with the
Transaction.
"Taxes" has the meaning specified in Section 2.11(a).
"Termination Date" means the earlier of (i) the seventh
anniversary of the Funding Date and (ii) the date of termination in whole
of the Commitments pursuant to Section 2.04 or 6.01.
"Transaction" has the meaning specified in Preliminary Statement
(2).
"Transaction Documents" means the Merger Agreement, the
Distribution Agreement, the Omnibus Restructuring Agreement, the Consents
Side Letter and the Indemnity Support Agreement (but only if and to the
extent required to be entered into pursuant to the Consents Side Letter).
"Type" refers to the distinction between Advances bearing interest
at the Base Rate and Advances bearing interest at a Eurodollar Rate.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening of
such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
ERISA, that is maintained for employees of the Borrower or any of its
Subsidiaries or in respect of which the Borrower or any of its Subsidiaries
could have liability.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each mean "to but excluding".
SECTION 1.03. Accounting Terms and Determinations. (a) Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP; provided that, if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any provision hereof to
eliminate the effect of any change in GAAP (or if the Administrative Agent
notifies the Borrower that the Required Lenders wish to amend any provision
hereof for such purpose), then such provision shall be applied on the basis of
GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such provision is amended
in a manner satisfactory to the Borrower and the Required Lenders.
(b) For all purposes of this Agreement, including the
computation of the financial covenants set forth in Section 5.04, the term
"Fiscal Quarter" with respect to the Borrower and its Subsidiaries shall mean
the three-month fiscal period of the Borrower or such Subsidiary ending
nearest to the last day of each November, February, May and August.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make a single advance (an
"Advance") to the Borrower on the Funding Date in an amount not to exceed such
Lender's Commitment. The Borrowing shall consist of Advances made
simultaneously by the Lenders ratably according to their Commitments. Amounts
borrowed under this Section 2.01 and repaid or prepaid may not be reborrowed.
SECTION 2.02. Making the Advances. (a) The Borrowing shall be
made on notice, given not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the date of the proposed Borrowing in the case of
any part of the Borrowing consisting of Eurodollar Rate Advances, or 10:30 A.M.
(New York City time) on the date of the proposed Borrowing in the case of any
part of the Borrowing consisting of Base Rate Advances, by the Borrower to the
Administrative Agent, which shall give to each Lender prompt notice thereof by
telephone, confirmed immediately in writing, or by telecopier. Such notice of
Borrowing (the "Notice of Borrowing") shall be by telephone, confirmed
immediately in writing, or telecopier, in substantially the form of Exhibit B
hereto, specifying therein the requested (i) date of the Borrowing, (ii) Type
of Advances comprising the Borrowing, (iii) aggregate amount of the Borrowing
and (iv) in the case of any part of the Borrowing consisting of Eurodollar
Rate Advances, initial Interest Period for each such Advance. Each Lender
shall, before 11:00 A.M. (New York City time) on the date of the Borrowing,
make available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account, in same day funds,
such Lender's ratable portion of the Borrowing in accordance with the
Commitments of such Lender and the other Lenders. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Administrative Agent will make such
funds available to the Borrower by crediting the Borrower's Account.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
any Group of Advances if the aggregate amount of such Group of Advances is
less than $5,000,000 or if the obligation of the Lenders to make Eurodollar
Rate Advances shall then be suspended pursuant to Section 2.09(c) and (ii) the
Advances may not be outstanding as part of more than four separate Groups of
Advances.
(c) The Notice of Borrowing shall be irrevocable and binding on
the Borrower. In the case of any part of the Borrowing that the Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the
Borrower shall, within 15 days after demand, indemnify each Lender against any
loss, cost or expense (but excluding loss of margin for any day after the date
specified in the Notice of Borrowing for such Advance) incurred by such Lender
as a result of any failure to fulfill on or before the date specified in the
Notice of Borrowing for such Advance the applicable conditions set forth in
Article III, including, without limitation, any loss, cost or expense incurred
by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Advance to be made by such Lender as part
of the Borrowing when such Advance, as a result of such failure, is not made
on such date, provided that such Lender shall have delivered to the Borrower a
certificate setting forth in reasonable detail the amount of, the basis for
and the calculation of, such loss, cost or expense, which certificate shall be
conclusive in the absence of manifest error.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of the Borrowing that such Lender will not
make available to the Administrative Agent such Lender's ratable portion of
the Borrowing, the Administrative Agent may assume that such Lender has made
such portion available to the Administrative Agent on the date of the
Borrowing in accordance with subsection (a) of this Section 2.02 and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the extent that
such Lender shall not have so made such ratable portion available to the
Administrative Agent, such Lender and the Borrower severally agree to repay or
pay to the Administrative Agent forthwith on demand such corresponding amount
and to pay interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid or paid to the
Administrative Agent, at (i) in the case of the Borrower, the interest rate
applicable at such time under Section 2.06 to Advances comprising the
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If
such Lender shall pay to the Administrative Agent such corresponding amount,
such amount so paid shall constitute such Lender's Advance as part of the
Borrowing for all purposes.
(e) The failure of any Lender to make the Advance to be made by
it as part of the Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of the
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender on the date of the
Borrowing.
SECTION 2.03. Repayment of Advances. The Borrower shall repay to
the Administrative Agent for the ratable account of the Lenders the aggregate
outstanding principal amount of the Advances on the seventh anniversary of the
Funding Date or on the date the Notes become due and payable pursuant to
Section 6.01.
SECTION 2.04. Termination or Reduction of the Facility. (a)
Optional. The Borrower may, upon at least three Business Days' notice to the
Administrative Agent, terminate in whole or reduce in part, the Commitments;
provided that each partial reduction of the Commitments (i) shall be in the
aggregate amount of $10,000,000 or an integral multiple of $5,000,000 in
excess thereof and (ii) shall be made ratably among the Lenders in accordance
with their Commitments.
(b) Mandatory. At the close of business on the Funding Date,
the Commitments shall be automatically and permanently reduced to zero.
SECTION 2.05. Prepayments. The Borrower may, upon same Business
Day's notice in the case of Base Rate Advances and three Business Days' notice
in the case of Eurodollar Rate Advances, in each case given to the
Administrative Agent not later than 11:00 A.M. (New York City time) stating
the proposed date and aggregate principal amount of the prepayment, and if
such notice is given the Borrower shall, prepay the outstanding aggregate
principal amount of any Group of Advances in whole or ratably in part, together
with accrued interest to the date of such prepayment on the aggregate
principal amount prepaid; provided, however, that (x) each partial prepayment
shall be in an aggregate principal amount of $10,000,000 or an integral
multiple of $5,000,000 in excess thereof and (y) if any prepayment of a
Eurodollar Rate Advance is made on a date other than the last day of an
Interest Period for such Advance the Borrower shall also pay any amounts owing
pursuant to Section 8.04(c).
SECTION 2.06. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to
each Lender from the date of such Advance until such principal amount shall be
paid in full, at the following rates per annum:
(i) Base Rate Advances. For each day on which such Advance is a
Base Rate Advance, a rate per annum equal to the Base Rate for such day,
payable in arrears quarterly on the last day of each February, May, August
and November during such periods and on the date such Base Rate Advance
shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, for each day during each Interest
Period applicable thereto a rate per annum equal to the sum of (A) the
Eurodollar Rate for such Interest Period plus (B) the Applicable Margin for
such day, payable in arrears on the last day of such Interest Period and,
if such Interest Period has a duration of more than three months, on each
day that occurs during such Interest Period every three months from the
first day of such Interest Period and on the date such Eurodollar Rate
Advance shall be Converted or paid in full.
(b) Default Interest. The Borrower shall pay interest on (i)
the unpaid principal amount of each Advance owing to each Lender that is not
paid when due and (ii) to the fullest extent permitted by law, the amount of
any interest, fee or other amount payable hereunder that is not paid when due,
in each case, from the date such amount shall be due until such amount shall
be paid in full, payable in arrears on the date such amount shall be paid in
full and on demand, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid, in the case of interest, on the
Type of Advance on which such interest has accrued pursuant to clause (a)(i)
or (a)(ii) above, and, in all other cases, on Base Rate Advances pursuant to
clause (a)(i) above.
(c) Notice of Interest Rate. Promptly after receipt of a Notice
of Borrowing or Notice of Interest Rate Election pursuant to Section 2.02(a)
or 2.08(a), the Administrative Agent shall give notice to the Borrower and
each Lender of the applicable interest rate determined by the Administrative
Agent for purposes of clause (a)(i) or (a)(ii).
SECTION 2.07. Fees. (a) Ticking Fee. The Borrower shall pay to
the Administrative Agent for the account of the Lenders a ticking fee payable
in arrears on the earlier of the Funding Date and the Termination Date and, in
addition, if neither the Funding Date nor the Termination Date has occurred
prior to such date, on April 30, 1998, (A) for the period commencing February
27, 1998 until the earliest of (i) the Funding Date, (ii) April 30, 1998 and
(iii) the Termination Date, at the rate of 25 basis points per annum
(calculated on the basis of a 360-day year) on the sum of the Commitments of
each Lender hereunder and (B) for the period commencing May 1, 1998 until the
earlier of (i) the Funding Date and (ii) the Termination Date, at the rate of
37.5 basis points per annum (calculated on the basis of a 360-day year) on the
sum of the Commitments of each Lender hereunder; provided, however, that any
ticking fee accrued with respect to the Commitment of a Defaulting Lender
during the period prior to the time such Lender became a Defaulting Lender and
unpaid at such time shall not be payable by the Borrower to such Defaulting
Lender so long as such Lender shall be a Defaulting Lender except to the
extent that such ticking fee shall otherwise have been due and payable by the
Borrower prior to such time; and provided further that no ticking fee shall
accrue on the Commitment of a Defaulting Lender so long as such Lender shall
be a Defaulting Lender.
(b) Administrative Agent's Fees. The Borrower shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed between the Borrower and the Administrative Agent.
SECTION 2.08. Conversion and Continuation of Advances. (a)
Optional. The Borrower may on any Business Day, upon notice (a "Notice of
Interest Rate Election") given to the Administrative Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion or continuation and subject to the provisions of
Sections 2.06 and 2.09, Convert all or any portion of a Group of Advances into
Advances of the other Type or, in the case of a Group of Eurodollar Rate
Advances, continue such Advances as Eurodollar Rate Advances for an additional
Interest Period; provided, however, that any Conversion of Base Rate Advances
into Eurodollar Rate Advances, and any continuation of Eurodollar Rate
Advances for an additional Interest Period, shall be in an aggregate amount
not less than the minimum amount specified in Section 2.02(b), no Conversion
of any Advances shall result in more separate Groups of Advances than
permitted under Section 2.02(b) and each Conversion or continuation of less
than all of the Advances in any Group of Advances shall apply ratably to the
Advances of the respective Lenders included in such Group. Each such Notice
of Interest Rate Election shall, within the restrictions specified above,
specify (i) the date of such Conversion or continuation, (ii) the Advances to
be Converted or continued and (iii) in the case of any such continuation of or
Conversion into Eurodollar Rate Advances, the duration of the initial or next
Interest Period for such Advances. Each Notice of Interest Rate Election
shall be irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Group of
Eurodollar Rate Advances shall be reduced, by prepayment or otherwise, to less
than $5,000,000, such Advances shall automatically Convert into Base Rate
Advances.
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any Group of Eurodollar Rate Advances in accordance with
the provisions contained in the definition of "Interest Period" in Section
1.01, the Administrative Agent will forthwith so notify the Borrower and the
Lenders, whereupon each such Eurodollar Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert into a
Base Rate Advance.
SECTION 2.09. Increased Costs, Etc. (a) If, due to either (i)
the introduction, after the date hereof, of or any change in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request issued after the date hereof from any central bank or
other governmental authority (whether or not having the force of law), there
shall be any increase in the cost to any Lender Party of agreeing to make or
of making, funding or maintaining Eurodollar Rate Advances (excluding for
purposes of this Section 2.09 any such increased costs resulting from (i)
Taxes, Other Taxes or taxes expressly excluded from the definition of Taxes
and Other Taxes (as to which Section 2.11 shall govern), (ii) changes in the
basis of taxation of overall net income or overall gross income by the United
States or by the foreign jurisdiction or state under the laws of which such
Lender Party is organized or has its Applicable Lending Office or any
political subdivision thereof and (iii) any requirement as to which such
Lender is entitled to compensation under Section 2.15), then the Borrower
shall from time to time, within 15 days after demand by such Lender Party
(with a copy of such demand to the Administrative Agent), accompanied by a
certificate of such Lender Party setting forth in reasonable detail the amount
of, the basis for and the calculation of such additional amounts, pay to the
Administrative Agent for the account of such Lender Party additional amounts
sufficient to compensate such Lender Party for such increased cost; provided,
however, that a Lender Party claiming additional amounts under this Section
2.09(a) agrees to use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to designate a different Applicable
Lending Office if the making of such a designation would avoid the need for,
or reduce the amount of, such increased cost that may thereafter accrue and
would not, in the reasonable judgment of such Lender Party, be otherwise
disadvantageous to such Lender Party. A certificate as to the amount of such
increased cost, submitted to the Borrower by such Lender Party, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If any Lender Party determines that the adoption, after the
date hereof, of any law or regulation or compliance with any guideline or
request issued after the date hereof from any central bank or other
governmental authority (whether or not having the force of law) regarding
capital adequacy affects or would affect the amount of capital required or
expected to be maintained by such Lender Party or any corporation controlling
such Lender Party and that the amount of such capital is increased by or based
upon the existence of such Lender Party's commitment to lend, then, upon
demand by such Lender Party (with a copy of such demand to the Administrative
Agent), accompanied by a certificate of such Lender Party setting forth in
reasonable detail the amount of, the basis for and the calculation of such
additional amounts, the Borrower shall pay to the Administrative Agent for the
account of such Lender Party, from time to time within 30 days after demand by
such Lender Party, additional amounts sufficient to compensate such Lender
Party in the light of such circumstances, for any reduction in the rate of
return on capital of such Lender or corporation controlling such Lender below
the level that such Lender or controlling corporation could have achieved but
for such adoption or issuance (taking into consideration its policies with
respect to capital adequacy) to the extent that such Lender Party reasonably
determines such increase in capital to be allocable to the existence of such
Lender Party's commitment to lend. A certificate as to such amounts submitted
to the Borrower by such Lender Party shall be conclusive and binding for all
purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances under the
Facility, the Required Lenders notify the Administrative Agent that the
Eurodollar Rate for any Interest Period for such Advances will not adequately
reflect the cost to such Lenders of making, funding or maintaining their
Eurodollar Rate Advances for such Interest Period, the Administrative Agent
shall forthwith so notify the Borrower and the Lenders, whereupon (i) each
such Eurodollar Rate Advance under the Facility will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance and (ii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower that such Lenders have
determined that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if
the introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances
hereunder, then, on notice thereof and demand therefor by such Lender to the
Borrower through the Administrative Agent, (i) each Eurodollar Rate Advance
under the Facility made by such Lender will automatically, upon such demand,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended
until the Administrative Agent shall notify the Borrower that such Lender has
determined that the circumstances causing such suspension no longer exist;
provided, however, that, before making any such demand, such Lender agrees to
use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Eurodollar Lending Office if
the making of such a designation would allow such Lender or its Eurodollar
Lending Office to continue to perform its obligations to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances and would
not, in the judgment of such Lender, be otherwise disadvantageous to such
Lender.
SECTION 2.10. Payments and Computations. (a) The Borrower shall
make each payment hereunder and under the Notes, irrespective of any right of
counterclaim or set-off (except as otherwise provided in Section 2.14), not
later than 12:00 noon (New York City time) on the day when due in U.S. dollars
to the Administrative Agent at the Administrative Agent's Account in same day
funds. The Administrative Agent will promptly thereafter cause like funds to
be distributed (i) if such payment by the Borrower is in respect of principal,
interest, or any other Obligation then payable hereunder and under the Notes
to more than one Lender Party, to such Lender Parties for the account of their
respective Applicable Lending Offices ratably in accordance with the amounts
of such respective Obligations then payable to such Lender Parties and (ii) if
such payment by the Borrower is in respect of any Obligation then payable
hereunder to one Lender Party, to such Lender Party for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register pursuant to
Section 8.07(d), from and after the effective date of such Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder and
under the Notes in respect of the interest assigned thereby to the Lender
Party assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) If the Administrative Agent receives funds for application
to the Obligations under the Loan Documents under circumstances in which
neither the Borrower nor the Loan Documents specify the Advances to which, or
the manner in which, such funds are to be applied, the Administrative Agent
may, but shall not be obligated to, elect to distribute such funds to each
Lender Party ratably in accordance with such Lender Party's proportionate
share of the principal amount of all outstanding Advances, in repayment or
prepayment of such of the outstanding Advances or other Obligations owed to
such Lender Party, and for application to such principal installments, as the
Administrative Agent shall direct.
(c) All computations of interest based on the Base Rate shall be
made by the Administrative Agent on the basis of a year of 365 or 366 days, as
the case may be, and all computations of interest based on the Eurodollar Rate
and all computations of fees (including, without limitation, fees payable
under Section 2.07) shall be made by the Administrative Agent on the basis of
a year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or fees are payable. Each determination by the Administrative Agent
of an interest rate or fee hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest, fees or
commissions, as the case may be; provided, however, that, if such extension
would cause payment of interest on or principal of Eurodollar Rate Advances to
be made in the next following calendar month, such payment shall be made on
the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to any Lender
Party hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to each such
Lender Party on such due date an amount equal to the amount then due such
Lender Party. If and to the extent the Borrower shall not have so made such
payment in full to the Administrative Agent, each such Lender Party shall
repay to the Administrative Agent forthwith on demand such amount distributed
to such Lender Party together with interest thereon, for each day from the
date such amount is distributed to such Lender Party until the date such
Lender Party repays such amount to the Administrative Agent, at the Federal
Funds Rate.
SECTION 2.11. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.10,
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender Party
and the Administrative Agent, taxes that are imposed on its overall net income
by the United States and taxes that are imposed on its overall net income (and
franchise and similar taxes imposed in lieu thereof) by the state or foreign
jurisdiction under the laws of which such Lender Party or the Administrative
Agent (as the case may be) is organized or in which it is resident or any
political subdivision thereof and, in the case of each Lender Party, taxes
that are imposed on its overall net income (and franchise and similar taxes
imposed in lieu thereof) by the state or foreign jurisdiction of such Lender
Party's Applicable Lending Office or any political subdivision thereof and in
the case of each Lender Party and the Administrative Agent, overall net income
taxes imposed solely by reason of such Lender Party or the Administrative
Agent (as the case may be) doing business in the jurisdiction imposing such
tax, other than taxes arising solely as a result of such Lender Party or the
Administrative Agent entering into this Agreement or holding any Note or
performing any activity contemplated herein (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities in respect
of payments hereunder or under the Notes being hereinafter referred to as
"Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Note to any Lender
Party or the Administrative Agent, (i) the sum payable shall be increased as
may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.11) such
Lender Party or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future
stamp, documentary, excise, property or similar taxes, charges or levies that
arise from any payment made hereunder or under the Notes or from the
execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) The Borrower shall indemnify each Lender Party and the
Administrative Agent for and hold it harmless against the full amount of Taxes
and Other Taxes, and for the full amount of Taxes and Other Taxes on amounts
payable under this Section 2.11, imposed on or paid by such Lender Party or the
Administrative Agent (as the case may be) and any liability (including
penalties, additions to tax, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the
date such Lender Party or the Administrative Agent (as the case may be) makes
written demand therefor, accompanied by a certificate of such Lender Party
setting forth the amount thereof, the basis therefor and the calculation
thereof; provided, however, that the Borrower shall not be obligated to make
payment to the Lender Party or the Administrative Agent (as the case may be)
pursuant to this Section in respect of penalties, additions to tax, interest,
expenses and other liabilities attributable to any Taxes or Other Taxes, if
(i) written demand therefor has not been made by such Lender Party or the
Administrative Agent within 30 Business Days from the date on which such
Lender Party or the Administrative Agent received written notice of an
imposition of Taxes or Other Taxes by the relevant taxing or governmental
authority (but only to the extent that the Borrower is materially damaged as a
result of such failure), (ii) such penalties, additions to tax, interest,
expenses and other liabilities have accrued as a result of the failure of such
Lender Party to remit the amount of any indemnity payment it receives from the
Borrower pursuant to this Section to a taxing authority or (iii) such
penalties, additions to tax, interest, expenses and other liabilities are
attributable to the gross negligence or willful misconduct of such Lender
Party or the Administrative Agent. After a Lender Party or the Administrative
Agent (as the case may be) receives notice of an assessment of Taxes or Other
Taxes, such Lender Party or Administrative Agent will act in good faith to
promptly notify the Borrower of its obligations hereunder.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 8.02, the original or a certified copy of a receipt evidencing such
payment, except to the extent such receipt or other document is not legally
available, in which case the Borrower will furnish other satisfactory evidence
of such payment.
(e) Each Lender Party organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender and on the date
of the Assignment and Acceptance pursuant to which it becomes a Lender Party
in the case of each other Lender Party, and from time to time thereafter as
requested in writing by the Borrower (but only so long thereafter as such
Lender Party remains lawfully able to do so), provide each of the
Administrative Agent and the Borrower with two original Internal Revenue
Service forms 1001 or 4224, as appropriate, or any successor form prescribed
by the Internal Revenue Service, certifying that such Lender Party is exempt
from or entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or the Notes. If the forms provided by a
Lender Party at the time such Lender Party first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender Party provides the appropriate form certifying
that a lesser rate applies, whereupon withholding tax at such lesser rate only
shall be considered excluded from Taxes for periods governed by such form;
provided, however, that, if at the date of the Assignment and Acceptance
pursuant to which a Lender Party assignee becomes a party to this Agreement,
the Lender Party assignor was entitled to payments under subsection (a) in
respect of United States withholding tax with respect to interest paid at such
date, then, to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable with
respect to the Lender Party assignee on such date.
(f) For any period with respect to which a Lender Party has
failed to provide the Borrower with the appropriate form described in
subsection (e) above (other than if such failure is due to a change in law
occurring after the date on which a form originally was required to be
provided or if such form otherwise is not required under subsection (e)
above), such Lender Party shall not be entitled to indemnification under
subsection (a) or (c) with respect to Taxes imposed by the United States by
reason of such failure; provided, however, that should a Lender Party become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Lender Party shall reasonably
request to assist such Lender Party to recover such Taxes at such Lender
Party's expense.
(g) If a Lender Party shall become aware that it is entitled to
receive a refund from a relevant taxing or governmental authority in respect
of Taxes or Other Taxes as to which it has been indemnified by the Borrower
pursuant to this Section, it shall promptly notify the Borrower of the
availability of such refund and shall, within 30 days after receipt of a
request by the Borrower (whether as a result of notification that it has made
to the Borrower or otherwise) make a claim to such taxing or governmental
authority for such refund at the Borrower's expense; provided that the
Borrower agrees to indemnify the Lender Party for any adverse tax consequences
resulting from the making of such claim for refund. If such Lender Party
finally and irrevocably receives a refund of any Taxes or Other Taxes
(including penalties, additions to tax and interest) for which it has been
indemnified by the Borrower pursuant to this Section, or which the Borrower
has paid pursuant to this Section, then, to the extent such Lender Party may
do so without jeopardizing the right to such refund or the right to benefit
from any other refunds, credits, reliefs, remissions or repayments to which it
may be entitled, it shall promptly notify the Borrower of such refund and
shall within 30 days from the date of receipt of such refund pay to the
Borrower the portion of such refund (including the after-tax amount of any
interest paid by the relevant taxing or governmental authority with respect to
such refund) that the Lender Party determines would leave such Lender Party in
no worse position than if no Taxes or Other Taxes had been imposed (but in no
case shall such portion exceed the amount of the indemnity payments made, or
Taxes or Other Taxes (including penalties, additions to tax, and interest)
paid, by the Borrower under this Section that gave rise to such refund), net
of all out-of-pocket expenses of such Lender Party and without interest,
provided, however, that the Borrower, upon the request of such Lender Party
agrees to repay the amount paid over to the Borrower (plus penalties, interest
or other charges due to the appropriate authorities in connection therewith)
to such Lender Party in the event such Lender Party is required to repay such
refund to such relevant authority.
(h) Any Lender Party claiming any additional amounts payable
pursuant to this Section 2.11 agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Applicable Lending Office (or take such other actions as
may be reasonably requested by the Borrower) if the making of such a change or
the taking of such an action would avoid the need for, or reduce the amount
of, any such additional amounts that may thereafter accrue and would not, in
the reasonable judgment of such Lender Party, be disadvantageous to such
Lender Party; provided that the mere existence of quantifiable fees, charges,
costs and expenses that the Borrower has offered and agreed to pay on behalf
of such Lender Party shall not be deemed to be disadvantageous to such Lender
Party.
SECTION 2.12. Sharing of Payments, Etc. If any Lender Party
shall obtain at any time any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) (a) on account of
Obligations due and payable to such Lender Party hereunder and under the Notes
at such time in excess of its ratable share (according to the proportion of
(i) the amount of such Obligations due and payable to such Lender Party at
such time to (ii) the aggregate amount of the Obligations due and payable to
all Lender Parties hereunder and under the Notes at such time) of payments on
account of the Obligations due and payable to all Lender Parties hereunder and
under the Notes at such time obtained by all the Lender Parties at such time
or (b) on account of Obligations owing (but not due and payable) to such
Lender Party hereunder and under the Notes at such time in excess of its
ratable share (according to the proportion of (i) the amount of such
Obligations owing to such Lender Party hereunder and under the Notes at such
time to (ii) the aggregate amount of the Obligations owing (but not due and
payable) to all Lender Parties hereunder and under the Notes at such time) of
payments on account of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the Notes at such time obtained by all of
the Lender Parties at such time, such Lender Party shall forthwith purchase
from the other Lender Parties such participations in the Obligations due and
payable or owing to them, as the case may be, as shall be necessary to cause
such purchasing Lender Party to share the excess payment ratably with each of
them; provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender Party, such purchase from
each other Lender Party shall be rescinded and such other Lender Party shall
repay to the purchasing Lender Party the purchase price to the extent of such
Lender Party's ratable share (according to the proportion of (i) the purchase
price paid to such Lender Party to (ii) the aggregate purchase price paid to
all Lender Parties) of such recovery together with an amount equal to such
Lender Party's ratable share (according to the proportion of (i) the amount of
such other Lender Party's required repayment to (ii) the total amount so
recovered from the purchasing Lender Party) of any interest or other amount
paid or payable by the purchasing Lender Party in respect of the total amount
so recovered. The Borrower agrees that any Lender Party so purchasing a
participation from another Lender Party pursuant to this Section 2.12 may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully
as if such Lender Party were the direct creditor of the Borrower in the amount
of such participation.
SECTION 2.13. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
solely to refinance certain Existing Debt of the Borrower, ICC and their
respective Subsidiaries, to make any required payment to New Marriott and to
pay transaction fees and expenses.
SECTION 2.14. Defaulting Lenders. (a) In the event that, at any
time, (i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to the Borrower and (iii) the Borrower
shall be required to make any payment hereunder or under any other Loan
Document to or for the account of such Defaulting Lender, then the Borrower
may, so long as no Event of Default shall have occurred and be continuing at
such time and to the fullest extent permitted by applicable law, set off and
otherwise apply the Obligation of the Borrower to make such payment to or for
the account of such Defaulting Lender against the obligation of such
Defaulting Lender to make such Defaulted Advance. In the event that, on any
date, the Borrower shall so set off and otherwise apply its obligation to make
any such payment against the obligation of such Defaulting Lender to make any
such Defaulted Advance on or prior to such date, the amount so set off and
otherwise applied by the Borrower shall constitute for all purposes of this
Agreement and the other Loan Documents an Advance by such Defaulting Lender
made on the date of such set off under the Facility pursuant to which such
Defaulted Advance was originally required to have been made pursuant to
Section 2.01. Such Advance shall be considered, for all purposes of this
Agreement, (i) to comprise part of the Borrowing in connection with which such
Defaulted Advance was originally required to have been made pursuant to
Section 2.01 and (ii) to be of the same Type as, and to bear interest at the
rate applicable to, the Advances of the other Lenders included in such
Borrowing, which interest shall be payable on the dates upon which interest is
payable on such other Advances. The Borrower shall notify the Administrative
Agent at any time the Borrower exercises its right of set-off pursuant to this
subsection (a) and shall set forth in such notice (A) the name of the
Defaulting Lender and the Defaulted Advance required to be made by such
Defaulting Lender and (B) the amount set off and otherwise applied in respect
of such Defaulted Advance pursuant to this subsection (a). Any portion of
such payment otherwise required to be made by the Borrower to or for the
account of such Defaulting Lender which is paid by the Borrower, after giving
effect to the amount set off and otherwise applied by the Borrower pursuant to
this subsection (a), shall be applied by the Administrative Agent as specified
in subsection (b) or (c) of this Section 2.14.
(b) In the event that, at any time, (i) any Lender Party shall
be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Amount to the Administrative Agent or any of the other Lender Parties and
(iii) the Borrower shall make any payment hereunder or under any other Loan
Document to the Administrative Agent for the account of such Defaulting
Lender, then the Administrative Agent may, on its behalf or on behalf of such
other Lender Parties and to the fullest extent permitted by applicable law,
apply at such time the amount so paid by the Borrower to or for the account of
such Defaulting Lender to the payment of each such Defaulted Amount to the
extent required to pay such Defaulted Amount. In the event that the
Administrative Agent shall so apply any such amount to the payment of any such
Defaulted Amount on any date, the amount so applied by the Administrative
Agent shall constitute for all purposes of this Agreement and the other Loan
Documents payment, to such extent, of such Defaulted Amount on such date. Any
such amount so applied by the Administrative Agent shall be retained by the
Administrative Agent or distributed by the Administrative Agent to such other
Lender Parties, ratably in accordance with the respective portions of such
Defaulted Amounts payable at such time to the Administrative Agent and such
other Lender Parties and, if the amount of such payment made by the Borrower
shall at such time be insufficient to pay all Defaulted Amounts owing at such
time to the Administrative Agent and the other Lender Parties, in the
following order of priority:
(i) first, to the Administrative Agent for any Defaulted Amount
then owing to the Administrative Agent; and
(ii) second, to any other Lender Parties for any Defaulted
Amounts then owing to such other Lender Parties, ratably in accordance with
such respective Defaulted Amounts then owing to such other Lender Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.14.
(c) In the event that, at any time, (i) any Lender Party shall
be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted
Advance or a Defaulted Amount and (iii) the Borrower, the Administrative Agent
or any other Lender Party shall be required to pay or distribute any amount
hereunder or under any other Loan Document to or for the account of such
Defaulting Lender, then the Borrower or such other Lender Party shall pay such
amount to the Administrative Agent to be held by the Administrative Agent, to
the fullest extent permitted by applicable law, in escrow or the
Administrative Agent shall, to the fullest extent permitted by applicable law,
hold in escrow such amount otherwise held by it. Any funds held by the
Administrative Agent in escrow under this subsection (c) shall be deposited by
the Administrative Agent in an account with Societe Generale, in the name and
under the control of the Administrative Agent, but subject to the provisions
of this subsection (c). The terms applicable to such account, including the
rate of interest payable with respect to the credit balance of such account
from time to time, shall be Societe Generale's standard terms applicable to
escrow accounts maintained with it. Any interest credited to such account
from time to time shall be held by the Administrative Agent in escrow under,
and applied by the Administrative Agent from time to time in accordance with
the provisions of, this subsection (c). The Administrative Agent shall, to
the fullest extent permitted by applicable law, apply all funds so held in
escrow from time to time to the extent necessary to make any Advances required
to be made by such Defaulting Lender and to pay any amount payable by such
Defaulting Lender hereunder and under the other Loan Documents to the
Administrative Agent or any other Lender Party, as and when such Advances or
amounts are required to be made or paid and, if the amount so held in escrow
shall at any time be insufficient to make and pay all such Advances and
amounts required to be made or paid at such time, in the following order of
priority:
(i) first, to the Administrative Agent for any amount then due
and payable by such Defaulting Lender to the Administrative Agent hereunder;
(ii) second, to any other Lender Parties for any amount then due
and payable by such Defaulting Lender to such other Lender Parties
hereunder, ratably in accordance with such respective amounts then due and
payable to such other Lender Parties; and
(iii) third, to the Borrower for any Advance then required to be
made by such Defaulting Lender pursuant to a Commitment of such Defaulting
Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by
such Lender Party to the Obligations owing to such Lender Party at such time
under this Agreement and the other Loan Documents ratably in accordance with
the respective amounts of such obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under
this Section 2.14 are in addition to other rights and remedies that the
Borrower may have against such Defaulting Lender with respect to any Defaulted
Advance and that the Administrative Agent or any Lender Party may have against
such Defaulting Lender with respect to any Defaulted Amount.
SECTION 2.15. Regulation D Compensation. If and so long as a
reserve requirement of the type described in the definition of "Eurodollar
Rate Reserve Percentage" is prescribed by the Board of Governors of the
Federal Reserve System (or any successor), each Lender subject to such
requirement may require the Borrower to pay, contemporaneously with each
payment of interest on each of such Lender's Eurodollar Rate Advances,
additional interest on such Eurodollar Rate Advance at a rate per annum
determined by such Lender up to but not exceeding the excess of (i) (A) the
applicable Eurodollar Rate divided by (B) one minus the Eurodollar Rate
Reserve Percentage over (ii) the applicable Eurodollar Rate. Any Lender
wishing to require payment of such additional interest (x) shall so notify the
Borrower and the Administrative Agent, in which case such additional interest
on the Eurodollar Rate Advances of such Lender shall be payable to such Lender
at the place indicated in such notice with respect to each Interest Period
commencing at least three Business Days after such Lender gives such notice
and (y) shall notify the Borrower at least five Business Days before each date
on which interest is payable on the Eurodollar Rate Advances of the amount
then due it under this Section.
SECTION 2.16. Base Rate Advances Substituted for Affected
Eurodollar Rate Advances. If (i) the obligation of any Lender to make, or to
continue or Convert outstanding Advances as or to, Eurodollar Rate Advances
has been suspended pursuant to Section 2.09(d) or (ii) any Lender has demanded
compensation under Section 2.09(a) or (b) or Section 2.11 with respect to its
Eurodollar Rate Advances, and in any such case the Borrower shall, by at least
five Business Days' prior notice to such Lender through the Administrative
Agent, have elected that the provisions of this Section shall apply to such
Lender, then, unless and until such Lender notifies the Borrower that the
circumstances giving rise to such suspension or demand for compensation no
longer exist, all Advances which would otherwise be made by such Lender as (or
continued as or Converted to) Eurodollar Rate Advances, shall instead be Base
Rate Advances on which interest and principal shall be payable
contemporaneously with the related Eurodollar Rate Advances of the other
Lenders. If such Lender notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer exist, the
principal amount of each such Base Rate Advance shall be converted into a
Eurodollar Rate Advance on the first day of the next succeeding Interest
Period applicable to the related Eurodollar Rate Advances of the other Lenders.
SECTION 2.17. Replacement of Certain Lenders. If any Lender (a
"Subject Lender") (i) is a Defaulting Lender that owes a Defaulted Advance to
the Borrower, (ii) makes demand upon the Borrower for (or if the Borrower is
otherwise required to pay) amounts pursuant to Section 2.09(a) or (b) or
Section 2.11 or (iii) gives notice pursuant to Section 2.09(d) requiring a
conversion of such Subject Lender's Eurodollar Rate Advances to Base Rate
Advances or suspending such Lender's obligation to make Advances as, or to
Convert or continue Advances into or as, Eurodollar Rate Advances, the
Borrower may, within 90 days of receipt by the Borrower of such demand or
notice (or the occurrence of such other event causing the Borrower to be
required to pay such compensation), as the case may be, give notice (a
"Replacement Notice") in writing to the Administrative Agent and such Subject
Lender of its intention to replace such Subject Lender with a financial
institution (a "Replacement Lender") designated in such Replacement Notice.
Unless the Administrative Agent shall, in the exercise of its reasonable
discretion and within 30 days of its receipt of such Replacement Notice,
notify the Borrower and such Subject Lender in writing that the designated
financial institution is unsatisfactory to the Administrative Agent (such
denial not being available to the Administrative Agent where the Replacement
Lender is already a Lender), then such Subject Lender shall, subject to the
payment of any amounts due pursuant to Sections 2.09(a) and (b) and Section
2.11 assign, in accordance with Section 8.07, all of its Commitments,
Advances, Notes and other rights and obligations under this Agreement and all
other Loan Documents to such designated financial institution; provided,
however, that (i) such assignment shall be without recourse, representation or
warranty and (ii) the purchase price paid by such designated financial
institution shall be in at least the amount of such Subject Lender's Advances,
together with all accrued and unpaid interest and fees in respect thereof,
plus all other amounts (including the amounts demanded and unreimbursed under
Sections 2.09(a) and (b) and Section 2.11) owing to such Subject Lender
hereunder. Upon the effective date of an assignment described above, the
Borrower shall issue a replacement Note or Notes, as the case may be, to such
designated financial institution or Replacement Lender, as applicable, and
such institution shall become a "Lender" for all purposes under this Agreement
and the other Loan Documents.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Closing. This Agreement
shall become effective on the date (the "Closing Date") that the following
conditions precedent are satisfied:
(a) The Administrative Agent shall have received, dated the
Closing Date, in form and substance satisfactory to the Arrangers and their
legal counsel, a copy of this Agreement duly executed by each party hereto,
with definitive forms of all exhibits hereto mutually satisfactory to the
Borrower and the Arrangers and their legal counsel;
(b) The Borrower shall have paid all accrued fees and
reimbursable expenses of the Arrangers (including the accrued reasonable
fees and expenses of counsel to the Arrangers) due on or before the Closing
Date, to the extent invoiced at least two Business Days prior to the
Closing Date; and
(c) The Senior Debt Credit Agreement shall have been duly
executed by each party thereto and delivered to the Administrative Agent.
SECTION 3.02. Conditions Precedent to Borrowing. The obligation
of each Lender to make an Advance on the Funding Date is subject to the
satisfaction of the following conditions precedent before or concurrently
therewith:
(a) The Spinoff, the Canadian Subsidiary Transfer, the Cash
Payment and the Merger shall have been consummated in accordance with the
terms of the Transaction Documents, without any written waiver or amendment
not consented to by the Requisite Lenders of any term, provision or
condition set forth therein, and in compliance with all applicable laws (it
being understood that the Consents Side Letter, the Distribution Agreement,
the Merger Agreement, the Omnibus Restructuring Agreement and related
documents delivered to the Arrangers prior to November 27, 1997, and as
amended through the date hereof pursuant to amendments provided to the
Lenders prior to the date hereof (the "Base Transaction Documents"), are
satisfactory to the Lender Parties and their legal counsel), and, if the
Hypothetical Consent Exposure Amount (as defined in the Consents Side
Letter) on the Funding Date exceeds $25,000,000, the arrangements as
contemplated by Section 1 of the Consents Side Letter and Exhibit B thereto
shall have been fully satisfied or other arrangements acceptable to the
Requisite Lenders shall have been put in place.
(b) The Subsidiary Contribution shall have been consummated in
accordance with the terms described on Schedule 3.02(b).
(c) The Transaction Documents shall be in full force and effect.
(d) The Lender Parties shall be reasonably satisfied with the
corporate and legal structure and capitalization of each Loan Party,
including the terms and conditions of the charter and bylaws (or other
similar organizational documents) and each class of capital stock of each
Loan Party and of each agreement or instrument relating to such structure
or capitalization, provided that the corporate and legal structure and
capitalization of the Loan Parties, to the extent specified in the
Information Memorandum or the Base Transaction Documents, are satisfactory
to the Lender Parties.
(e) Sodexho Operations shall have received not less than
$500,000,000 in gross cash proceeds of the Senior Debt.
(f) All Existing Debt identified as "To Be Refinanced" on
Schedule 4.01(x) (other than any Retained Marriott Bonds) shall have been
prepaid, redeemed or defeased in full or otherwise satisfied and
extinguished or arrangements therefor satisfactory to the Administrative
Agent shall have been made (or, in the case of certain Marriott Bonds,
assumed by New Marriott).
(g) There shall have occurred no Material Adverse Change since
September 12, 1997.
(h) The Borrower shall have paid all accrued fees and expenses
of the Administrative Agent and the Lender Parties (including the fees and
expenses of counsel to the Administrative Agent) due on or before the
Funding Date, to the extent invoiced at least two Business Days prior to
the Funding Date.
(i) All governmental authorizations, and material consents,
approvals and authorizations of, and notices and filings to or with, and
other actions by, any other Person necessary in connection with the
Transaction, any of the Loan Documents or the Related Documents or any
transactions contemplated thereby, other than (i) filings and recordings
under, or with respect to the Collateral under and as defined in, the
Senior Debt Documents, (ii) governmental authorizations, and consents,
approvals, authorizations, notices, filings and other actions, described on
Schedule 4.01(d) hereto, (iii) third party consents and approvals that have
not been obtained that relate to Indemnified Consent Exposure and (iv)
consents, approvals, authorizations, notices, filings and other actions the
absence of which would not reasonably be expected to have a Material
Adverse Effect, shall have been obtained (without the imposition of any
conditions that are not reasonably acceptable to the Lender Parties) and
shall remain in full force and effect; and all applicable waiting periods
shall have expired without any action being taken by any competent
authority.
(j) There shall exist no action, suit, investigation, litigation
or proceeding affecting any Loan Party or any of its Subsidiaries pending
or threatened before any court, governmental agency or arbitrator that
could reasonably be expected to have a Material Adverse Effect other than
the matters described on Schedule 4.01(i) (the "Disclosed Litigation").
(k) The Administrative Agent shall have received on or before
the Funding Date the following, each dated such day (unless otherwise
specified), in form and substance satisfactory to the Administrative Agent
(unless otherwise specified) and (except for the Notes) in sufficient
copies for each Lender Party:
(i) The Notes payable to the order of the Lenders.
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower and the Guarantor approving the
Transaction, this Agreement, the Notes and each other Loan
Document to which it is or is to be a party (including, in the
case of the resolutions of the Board of Directors of the
Guarantor, authorizing and approving the issuance of the Guaranty),
and of all documents evidencing other necessary corporate action
(including shareholder approval) and governmental approvals and
consents, if any, with respect to the Transaction, this Agreement,
the Notes, each other Loan Document and each Related Document.
(iii) A copy of the charter of the Borrower and each
amendment thereto, certified (as of a date reasonably near the
Funding Date) by the Secretary of State of the jurisdiction of its
incorporation as being a true and correct copy thereof.
(iv) To the extent reasonably available, a copy of a
certificate of the Secretary of State of the jurisdiction of its
incorporation, dated reasonably near the Funding Date, listing the
charter of the Borrower and each amendment thereto on file in his
office and certifying that (A) such amendments are the only
amendments to the Borrower's charter on file in the office of such
Secretary of State, (B) the Borrower has paid all franchise taxes
to the date of such certificate and (C) the Borrower is duly
incorporated and in good standing under the laws of the
jurisdiction of its incorporation.
(v) A copy of a certificate of the Secretary of State of
the State of Delaware certifying as to the filing and acceptance
of the certificate of merger in respect of the Merger, or other
confirmation of such filing satisfactory to the Arrangers.
(vi) A certificate of the Borrower, signed on behalf of the
Borrower by any two of its chief executive officer, chief
financial officer, chief accounting officer, president, secretary,
any vice president or any assistant secretary, dated the Funding
Date, certifying as to (A) the absence of any amendments to the
charter of the Borrower since the date of the Secretary of State's
certificate referred to in Section 3.02(k)(iv), other than the
filing of an amendment to the certificate of incorporation of the
Borrower, in the form attached thereto, on the Funding Date, (B) a
true and correct copy of the bylaws of the Borrower as in effect on
the Funding Date, (C) the due incorporation and good standing of
the Borrower as a corporation organized under the laws of the
jurisdiction of its incorporation and the absence of any
proceeding for the dissolution or liquidation of the Borrower, (D)
the truth of the representations and warranties contained in the
Loan Documents as though made on and as of the Funding Date (other
than any such representation or warranty that is limited to a
particular date or dates, as to which the truth of such
representation or warranty is as of such date or dates) and (E)
the absence of any Default at the time of, or immediately after
giving effect to, the Borrowing.
(vii) A certificate of the Guarantor, signed on behalf of
the Guarantor by the Secretary of the Board of the Guarantor,
dated the Funding Date, certifying as to (A) a true and correct
copy of the Statuts of the Guarantor as in effect on the Funding
Date, (B) the valid existence of the Guarantor as a societe
anonyme organized under the laws of the Republic of France and the
absence of any proceeding for the dissolution or liquidation of
the Guarantor, (C) a true and complete copy of a recent extract
from the Commercial Registry with respect to the Guarantor and (D)
the absence of any Guarantor Event of Default (as defined in the
Guaranty) or any event that would constitute a Guarantor Event of
Default but for the requirement that notice be given or time
elapse or both.
(viii) A certificate of the Secretary or an Assistant
Secretary of the Borrower and the Guarantor certifying the names
and true signatures of the officers of the Borrower and the
Guarantor authorized to sign this Agreement, the Notes and each
other Loan Document to which they are or are to be parties and the
other documents to be delivered hereunder and thereunder.
(ix) Completed requests for information, dated on or before
the Funding Date, listing all effective financing statements filed
in the jurisdictions in which the assets or property of the
Borrower or any Substantial Subsidiary are located that name the
Borrower or any Substantial Subsidiary as debtor, together with
copies of such financing statements.
(x) Duly executed termination statements (Form UCC-3 or a
comparable form) or the equivalent thereof in suitable form for
filing under the Uniform Commercial Code of all jurisdictions that
may be necessary or that the Administrative Agent may reasonably
deem desirable in order to terminate or amend existing liens on
the assets or property of the Borrower and any Substantial
Subsidiary (other than liens and security interests permitted
under the terms of the Loan Documents and the Senior Debt
Documents), duly executed by the appropriate secured party.
(xi) A copy of a ruling issued by the Internal Revenue
Service to the effect that the Spinoff will qualify as a tax-free
reorganization under Section 368(a)(1)(D) of the Internal Revenue
Code and a tax-free distribution under Section 355 of the Internal
Revenue Code to the holders of the stock of the Borrower.
(xii) Satisfaction of the Lender Parties and counsel for the
Administrative Agent with respect to the tax treatment of the
Borrower's debt as debt and not equity and the deductibility of
interest thereunder.
(xiii) Evidence that the Guarantor owns, directly or
indirectly, not less than 40.01% of the voting stock of the
Borrower.
(xiv) A copy of the fairness opinion with respect to the
Transaction issued to the Board of Directors of the Borrower by
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated.
(xv) A guaranty in substantially the form of Exhibit D (as
amended, supplemented or otherwise modified from time to time in
accordance with its terms, the "Guaranty"), duly executed by the
Guarantor.
(xvi) Certified copies of each of the Related Documents,
duly executed by the parties thereto and in form and substance
satisfactory to the Lender Parties (it being understood that the
Base Transaction Documents are satisfactory to the Lender Parties
and their legal counsel), together with all agreements,
instruments and other documents delivered in connection therewith.
(xvii) Certified copies of each contract with the Guarantor
listed on Schedule 4.01(z), duly executed by the parties thereto.
(xviii) A copy of the solvency opinion with respect to the
Borrower after giving effect to the Transaction and the other
transactions contemplated hereby, from American Appraisal
Associates, Inc.
(xix) Evidence of insurance complying with the provisions of
Section 5.01(d).
(xx) An unaudited pro forma balance sheet of the Guarantor
as of August 31, 1997 as if the Transaction had been consummated
on such date.
(xxi) A duly completed and executed Notice of Borrowing for
the Borrowing.
(xxii) A letter from Corporation Service Company, presently
located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, consenting
to its appointment by the Guarantor as its agent for service of
process (the "Process Agent"), without reservation, until at least
one (1) year after the Termination Date, together with evidence of
the payment in full of all fees thereof.
(xxiii) An opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Borrower and the Guarantor, in substantially the form of Exhibit
E-1 hereto and as to such other matters as the Required Lenders
through the Administrative Agent may reasonably request.
(xxiv) An opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., General Counsel
for the Borrower, in substantially the form of Exhibit E-2 hereto
and as to such other matters as the Required Lenders through the
Administrative Agent may reasonably request.
(xxv) An opinion of ▇▇▇▇▇▇▇▇▇ and May, French counsel for
the Guarantor, in substantially the form of Exhibit E-3 hereto and
as to such other matters as the Required Lenders through the
Administrative Agent may reasonably request.
(xxvi) A favorable opinion of Shearman & Sterling, counsel
for the Administrative Agent, in form and substance satisfactory
to the Administrative Agent.
(l) The representations and warranties contained in each Loan
Document shall be correct in all material respects on and as of the Funding
Date, before and after giving effect to the Borrowing and the application
of the proceeds therefrom, as though made on and as of such date, except to
the extent that any such representation or warranty is limited to a
particular date or dates, in which case such representation or warranty
shall have been true on and as of such date or dates.
(m) No event shall have occurred and be continuing, or would
result from the Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
SECTION 3.03. Determinations Under Section 3.02. For purposes of
determining compliance with the conditions specified in Section 3.02, each
Lender Party shall be deemed to have consented to, approved or accepted or to
be satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lender
Parties unless an officer of the Administrative Agent responsible for the
transactions contemplated by the Loan Documents shall have received notice
from such Lender Party prior to the Borrowing specifying its objection thereto
and such Lender Party shall not have made available to the Administrative
Agent such Lender Party's ratable portion of the Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower hereby represents and warrants (i) in the case of clauses (a),
(c)(i), (c)(ii)(w), (c)(ii)(x), (d) (but only insofar as clauses (c)(ii)(x)
and (d) relate to the execution and delivery, but not the performance, of this
Agreement) and (e) to the extent that such clauses relate to the Borrower (but
not to any other Loan Party) and to this Agreement (but not to any other Loan
Document) and are not expressly limited to another particular date or dates,
on the date hereof and (ii) in the case of such clauses and all other clauses
of this Section 4.01, except to the extent expressly limited to another
particular date or dates, on the Funding Date (after giving effect to the
Transaction), as follows:
(a) The Borrower (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases property
or in which the conduct of its business requires it to so qualify or be
licensed except where the failure to so qualify, be in good standing or be
licensed, either individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect and (iii) has all requisite
corporate power and authority, and all governmental licenses, permits and
other approvals (except for the absence of certain third-party consents and
approvals that result in Indemnified Consent Exposure), necessary to own or
lease and operate its properties and to carry on its business as now
conducted and as proposed to be conducted, except any such power, authority,
license, permit or approval the failure to have which would not reasonably
be expected to have a Material Adverse Effect.
(b) Set forth on Schedule 4.01(b) hereto is a complete and
accurate list as of the Funding Date (after giving effect to the
Transaction) of all Subsidiaries, including all Substantial Subsidiaries,
showing, as of the Funding Date (after giving effect to the Transaction),
as to each such Substantial Subsidiary, the correct legal name thereof, the
jurisdiction of its incorporation, the number of shares of each class of
capital stock authorized, and the number outstanding, on the Funding Date
and the percentage of the outstanding shares of each such class owned
(directly or indirectly) by each Loan Party on the Funding Date and the
number of shares covered by all outstanding options, warrants, rights of
conversion or purchase and similar rights on the Funding Date. As of the
Funding Date, all of the outstanding capital stock of all of such
Substantial Subsidiaries has been validly issued, is fully paid and
non-assessable and is owned by the person indicated on such Schedule
4.01(b), free and clear of all Liens, except those created under the Senior
Debt Documents and those permitted under Section 5.02(a). Each such
Substantial Subsidiary (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases property
or in which the conduct of its business requires it to so qualify or be
licensed except where the failure to so qualify, be in good standing or be
licensed would not reasonably be expected to have a Material Adverse Effect
and (iii) has all requisite corporate power and authority, and all
governmental licenses, permits and other approvals necessary to own or
lease and operate its properties and to carry on its business as now
conducted and as proposed to be conducted except any such power, authority,
license, permit or approval the failure to have which would not reasonably
be expected to have a Material Adverse Effect.
(c) The execution, delivery and performance by the Borrower of
each of this Agreement, the Notes, each other Loan Document to which it is
or is to be a party, and the consummation of the Transaction, are (i)
within the Borrower's corporate powers and have been duly authorized by all
necessary corporate action, and (ii) do not (w) contravene the Borrower's
charter or bylaws (or other similar organizational documents), (x) violate
any law, rule, regulation (including, without limitation, Regulation X of
the Board of Governors of the Federal Reserve System), order, writ,
judgment, injunction, decree, determination or award applicable to it the
violation of which would reasonably be expected to have a Material Adverse
Effect, (y) except for the absence of certain third-party consents and
approvals that result in Indemnified Consent Exposure, conflict with or
result in the breach of, or constitute a default under, any contract, loan
agreement, indenture, mortgage, deed of trust, lease or other instrument
binding on or affecting the Borrower, any of its Subsidiaries or any of
their properties, which conflict, default or breach would reasonably be
expected to have a Material Adverse Effect, or (z) except for the Liens
created under the Senior Debt Documents, result in or require the creation
or imposition of any Lien upon or with respect to any of the properties of
the Borrower or any of its Subsidiaries. Neither the Borrower nor any of
its Subsidiaries is in violation of any such law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award or, except as
set forth in clause (y) above, in breach of any such contract, loan
agreement, indenture, mortgage, deed of trust, lease or either instrument,
the violation or breach of which would reasonably be expected to have a
Material Adverse Effect.
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body or
any other third party is required for (i) the due execution, delivery or
performance by the Borrower of this Agreement, the Notes or any other Loan
Document to which it is or is to be a party, or for the consummation of the
Transaction (excluding the transactions under, and the creation and
perfection of Liens in respect of, the Senior Debt Credit Agreement and the
Collateral Documents as defined therein) or (ii) the exercise by the
Administrative Agent or any Lender Party of its rights under the Loan
Documents, except for (w) the authorizations, approvals, actions, notices
and filings listed on Part A of Schedule 4.01(d), all of which have been
duly obtained, taken, given or made as of the Closing Date and are, as of
the Closing Date, in full force and effect, (x) the authorizations,
approvals, actions, notices and filings listed on Part B of Schedule
4.01(d), all of which will have been (except to the extent indicated on
Schedule 4.01(d)) duly obtained, taken, given or made as of the Funding
Date and, as of the Funding Date, will be in full force and effect, (y)
third-party consents and approvals that have not been obtained that result
in Indemnified Consent Exposure and (z) authorizations, approvals, actions,
notices and filings the absence of which would not reasonably be expected
to have a Material Adverse Effect. As of the Funding Date, all applicable
waiting periods in connection with the Transaction have expired without any
action having been taken by any competent authority restraining, preventing
or imposing materially adverse conditions upon the Transaction or the
rights of the Borrower or its Subsidiaries freely to transfer or otherwise
dispose of, or to create any Lien on, any properties now owned or hereafter
acquired by any of them.
(e) This Agreement has been, and each of the Notes and each
other Loan Document to which the Borrower is or is to be a party, when
executed and delivered hereunder by the Borrower, will be, duly executed
and delivered by the Borrower. This Agreement is, and each of the Notes
and each other Loan Document to which the Borrower is or is to be a party
when executed and delivered hereunder by the Borrower will be, a valid and
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms, subject to applicable bankruptcy, insolvency and
other similar laws affecting creditors' rights generally and to general
equitable principles.
(f) The unaudited pro forma combined balance sheet of the
Borrower and its Subsidiaries as of September 12, 1997, and the related
unaudited pro forma combined statement of income of the Borrower and its
Subsidiaries for the 36 weeks then ended included in the Proxy Statement,
fairly present, subject to the provisions of Regulation S-X of the
Securities and Exchange Commission, the pro forma combined financial
condition of the Borrower and its Subsidiaries as at such date and the pro
forma combined results of operations of the Borrower and its Subsidiaries
for the period ended on such date, in each case giving effect to the
Transaction and the other transactions contemplated hereby as if the
Transaction and such other transactions had been consummated on such date
or at the beginning of such period, respectively, and since September 12,
1997, there has been no Material Adverse Change.
(g) The Consolidated forecasted balance sheets and income and
cash flow statements of the Borrower and its Subsidiaries included in the
Information Memorandum were prepared in good faith on the basis of the
assumptions stated therein, which assumptions were reasonable in the light
of conditions existing at the time of delivery of such forecasts, and
represented, at the time of delivery, the Borrower's reasonable estimate of
its future financial performance.
(h) The information concerning the Borrower and its Subsidiaries
contained in the Information Memorandum and the information concerning the
Borrower and its Subsidiaries contained in the other information, exhibits
and reports furnished by the Borrower to the Administrative Agent or any
Lender Party in connection with the negotiation of the Loan Documents or
pursuant to the terms of the Loan Documents (other than information
relating to the non-Foodservice Business), taken as a whole, did not
contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made therein not misleading.
(i) Except as set forth on Schedule 4.01(i), there is no action,
suit, investigation, litigation or proceeding affecting the Borrower or any
of its Subsidiaries, including any Environmental Action, pending or
threatened before any court, governmental agency or arbitrator that would
reasonably be expected to have a Material Adverse Effect.
(j) No proceeds of any Advance will be used in violation of
Regulation G, U or X of the Board of Governors of the Federal Reserve
System.
(k) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan that has resulted in or is reasonably
expected to result in a liability of the Borrower or any ERISA Affiliate
that would reasonably be expected to have a Material Adverse Effect.
(l) As of the last annual actuarial valuation date, except as
would not reasonably be expected to have a Material Adverse Effect, the
funded current liability percentage, as defined in Section 302(d)(8) of
ERISA, of each Plan exceeds 90% and there has been no adverse change in the
funding status of any such Plan since such date.
(m) Neither the Borrower nor any ERISA Affiliate has incurred or
is reasonably expected to incur any Withdrawal Liability to any
Multiemployer Plan that would reasonably be expected to have a Material
Adverse Effect.
(n) Neither the Borrower nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been terminated, within the meaning of
Title IV of ERISA, and no such Multiemployer Plan is reasonably expected to
be in reorganization or to be terminated, within the meaning of Title IV of
ERISA, in any such case, in a manner or to an extent that would reasonably
be expected to have a Material Adverse Effect.
(o) Except as set forth in the financial statements referred to
in this Section 4.01 and in Section 5.03, the Borrower and its Subsidiaries
have no material liability with respect to "expected post retirement
benefit obligations" within the meaning of Statement of Financial
Accounting Standards No. 106 that would reasonably be expected to have a
Material Adverse Effect.
(p) Neither the business nor the properties of the Borrower or
any of its Subsidiaries are affected by any fire, explosion, accident,
strike, lockout or other labor dispute, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy or other casualty (whether or
not covered by insurance) that could reasonably be expected to have a
Material Adverse Effect.
(q) Except to the extent that the same would not reasonably be
expected to have a Material Adverse Effect, the operations and properties
of the Borrower and each of its Subsidiaries comply in all material
respects with all applicable Environmental Laws and Environmental Permits,
all past non-compliance with such Environmental Laws and Environmental
Permits has been resolved without ongoing obligations or costs, and no
circumstances exist that could reasonably be expected to (i) form the basis
of an Environmental Action against the Borrower or any of its Subsidiaries
or any of their properties or (ii) cause any such property to be subject to
any restrictions on ownership, occupancy, use or transferability under any
Environmental Law.
(r) Except to the extent that the same would not reasonably be
expected to have a Material Adverse Effect, (i) none of the properties
currently or formerly owned or operated by the Borrower or any of its
Subsidiaries is listed or proposed for listing on the NPL or on the CERCLIS
or any analogous foreign, state or local list or is adjacent to any such
property; (ii) there are no and never have been any underground or
aboveground storage tanks or any surface impoundments, septic tanks, pits,
slumps or lagoons in which Hazardous Materials are being or have been
treated, stored or disposed on any property currently owned or operated by
the Borrower or any of its Subsidiaries or, to the best of its knowledge,
on any property formerly owned or operated by the Borrower or any of its
Subsidiaries; (iii) there is no asbestos or asbestos-containing material on
any property currently owned or operated by the Borrower or any of its
Subsidiaries; and (iv) Hazardous Materials have not been released,
discharged or disposed of on any property currently or formerly owned or
operated by the Borrower or any of its Subsidiaries.
(s) Except to the extent that any such disposal would not
reasonably be expected to have a Material Adverse Effect, all Hazardous
Materials generated, used, treated, handled or stored at, or transported to
or from, any property currently or formerly owned or operated by the
Borrower or any of its Subsidiaries have been disposed of in a manner not
reasonably expected to result in material liability to the Borrower or any
of its Subsidiaries.
(t) The Borrower and each of its Subsidiaries have filed, have
caused to be filed or have been included in all material tax returns
(federal, state, local or foreign) required to be filed and have paid (or
there has been paid by others) all material taxes shown thereon to be due,
together with applicable interest and penalties, other that any such taxes
or tax returns in respect of which the Borrower or any such Subsidiary
shall have been indemnified by New Marriott.
(u) Neither the Merger nor the Subsidiary Contribution will be
taxable to the Borrower or any of its Subsidiaries.
(v) The Borrower is not an "investment company", as such term is
defined in the Investment Company Act of 1940, as amended.
(w) As of the Funding Date, the Borrower is, individually and
together with its Subsidiaries, Solvent.
(x) Set forth on Schedule 4.01(x) hereto is a complete and
accurate list, as of the Closing Date, of all items of Existing Debt with a
principal amount in excess of $5,000,000 (other than Debt that, following
the consummation of the Transaction but without giving effect to the
redemption of any Marriott Bonds, will be Debt of New Marriott or any
Subsidiary of New Marriott and not Debt of the Borrower or any of its
Subsidiaries) showing as of the date hereof the principal amount
outstanding thereunder and showing the aggregate principal amount of all
items of such Existing Debt with an outstanding principal amount not in
excess of $5,000,000 as of the Closing Date.
(y) On the Funding Date, the Borrower and its Subsidiaries own
or have the legal right to use the "Sodexho" trade name for a period of ten
years following the Funding Date and the "Marriott" trade name for a period
of four years following the Funding Date, in each case, subject to the
terms and conditions of applicable license agreements, without known
conflict with the rights of any other Person.
(z) Set forth on Schedule 4.01(z) hereto is a complete and
accurate list, as of the date of this Agreement and as of the Funding Date,
of all contracts entered or to be entered into with the Guarantor for the
providing of business-related support services, expertise or other
assistance to the Borrower or any of its Subsidiaries, under which the
annual compensation payable to the Guarantor, or the fair market value of
the annual services to be provided by the Guarantor, exceeds $2,000,000,
showing as of the date of this Agreement the parties, subject matter and
term thereof. Each such contract has been duly authorized, executed and
delivered by all parties thereto, has not been amended or otherwise
modified except as permitted under Section 5.02(f), and, except to the
extent that any such failure to be in full force and effect, binding or
enforceable or any such default would not reasonably be expected to have a
Material Adverse Effect, is in full force and effect and is binding upon
and enforceable against all parties thereto in accordance with its terms,
and there exists no default under any such contract by any party thereto.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. From and after the Funding
Date (after giving effect to the Transaction), so long as any Advance shall
remain unpaid, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA, except to the extent that such failure
would not reasonably be expected to have a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become
delinquent, all material taxes, assessments and governmental charges or
levies imposed upon it or upon its property; provided, however, that
neither the Borrower nor any of its Subsidiaries shall be required to pay
or discharge any such tax, assessment, charge or claim that is being
contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained.
(c) Compliance with Environmental Laws. Except to the extent
that the failure to do so would not reasonably be expected to have a
Material Adverse Effect, (i) comply, and cause each of its Subsidiaries and
all lessees and other Persons operating or occupying its properties to
comply, in all material respects, with all applicable Environmental Laws
and Environmental Permits; (ii) obtain and renew and cause each of its
Subsidiaries to obtain and renew all Environmental Permits necessary for its
operations and properties; and (iii) conduct, and cause each of its
Subsidiaries to conduct, if required under Environmental Laws, any
investigation, study, sampling and testing, and undertake any cleanup,
removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the
requirements of all Environmental Laws; provided, however, that neither the
Borrower nor any of its Subsidiaries shall be required to undertake any
such cleanup, removal, remedial or other action to the extent that its
obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect to
such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks
as is usually carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which the Borrower or such
Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain, its
existence, legal structure, legal name, rights (charter and statutory),
permits, licenses, approvals, privileges and franchises, including, without
limitation, on the Funding Date only, the right to use the "Sodexho" trade
name for a period of ten years following the Funding Date and the
"Marriott" trade name for a period of four years following the Funding Date
(subject, in each case, to the terms and conditions of applicable license
agreements); provided, however, that the Borrower and its Subsidiaries may
consummate the Transaction and any other merger or consolidation permitted
under Section 5.02(c) and provided further that neither the Borrower nor
any of its Subsidiaries shall be required to preserve any right, permit,
license, approval, privilege or franchise if the Borrower or such
Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Borrower or such
Subsidiary, as the case may be, and that the loss thereof would not
reasonably be expected to have a Material Adverse Effect.
(f) Visitation Rights. At any reasonable time and from time to
time, upon reasonable prior notice and at the expense of the Administrative
Agent or such Lender Party, permit the Administrative Agent or any of the
Lender Parties or any agents or representatives thereof, to examine and
make copies of and abstracts from the records and books of account of, and
visit the properties of, the Borrower and any of its Subsidiaries, and to
discuss the affairs, finances and accounts of the Borrower and any of its
Subsidiaries with any of their officers or directors and, subject to prior
notice to the Borrower and affording a reasonable opportunity for the
Borrower to have its representatives participate therein, with their
independent certified public accountants.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with GAAP.
(h) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted.
(i) Performance of Certain Documents. Perform and observe all
of the material terms and provisions of the Tax Agreement, the Indemnity
Support Agreement (if the Indemnity Support Agreement has been entered
into) and the Consents Side Letter to be performed or observed by it,
maintain each such document in full force and effect, enforce each such
document in accordance with its terms, take all such action to such end as
may be from time to time requested by the Administrative Agent and, upon
request of the Administrative Agent, make to each other party to each such
document such demands and requests for information and reports or for
action as the Borrower or any of its Subsidiaries is entitled to make under
such document; provided that this subsection (i) shall only apply to the
Consents Side Letter and the Indemnity Support Agreement (if the Indemnity
Support Agreement is entered into) for so long as third-party consents as
set forth in Exhibit A to the Consents Side Letter with potential liability
in excess of $25,000,000 have not been obtained.
(j) Performance of Material Contracts. Perform and observe all
the terms and provisions of each Material Contract to be performed or
observed by it (except for the absence of certain third-party consents and
approvals for which the potential liability exposure is indemnified
pursuant to the Consents Side Letter and the Indemnity Support Agreement),
maintain each such Material Contract in full force and effect (other than
such Material Contracts that may be terminated by either party thereto
without cause or by the Borrower with cause), enforce each such Material
Contract in accordance with its terms, and cause each of its Subsidiaries
to do so except in any case where the failure to do so, either individually
or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
(k) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under the
Loan Documents with any of their Affiliates (other than the Borrower and
its Subsidiaries) on terms that are fair and reasonable and no less
favorable to the Borrower or such Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate;
provided that (i) the Borrower and its Subsidiaries may enter into and
perform contracts with the Guarantor existing on the Funding Date and any
amendments thereof not prohibited by Section 5.02(f) and (ii) the Borrower
and its Subsidiaries may make payments, distributions and other transfers,
and enter into transactions, permitted under Section 5.02(h) of the Senior
Debt Credit Agreement.
(l) Ownership of Sodexho Operations. Continue to be, at all
times, the record and beneficial owner of 100% of the shares of capital
stock of Sodexho Operations.
(m) Interest Rate Hedging. Enter into, within 6 months
following the Funding Date, and maintain thereafter, interest rate Hedge
Agreements with Persons acceptable to the Administrative Agent or other
fixed rate arrangements acceptable to the Administrative Agent (i) covering
a notional amount of not less than 45% of the sum of the aggregate
outstanding principal balance of each of this Facility and the Term
Facility (as defined in the Senior Debt Credit Agreement) plus
$100,000,000, and (ii) having an average life of not less than three years
from the date of commencement.
SECTION 5.02. Negative Covenants. From and after the Funding
Date (after giving effect to the Transaction), so long as any Advance shall
remain unpaid, the Borrower will not, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to exist,
any Lien on or with respect to any of its properties of any character
(including, without limitation, accounts) whether now owned or hereafter
acquired, or sign or file or suffer to exist, or permit any of its
Subsidiaries to sign or file or suffer to exist, under the Uniform
Commercial Code of any jurisdiction, a financing statement that names the
Borrower or any of its Subsidiaries as debtor, or sign or suffer to exist,
or permit any of its Subsidiaries to sign or suffer to exist, any security
agreement authorizing any secured party thereunder to file such financing
statement, or assign, or permit any of its Subsidiaries to assign, any
accounts or other right to receive income, excluding, however, from the
operation of the foregoing restrictions the following:
(i) Liens created under the Senior Debt Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and, in the case of
any such Lien securing any amount in excess of $3,000,000,
described on Schedule 5.02(a) hereto;
(iv) Liens arising in connection with Capitalized Leases
and other Debt permitted under Section 5.02(b)(v); provided that
no such Lien shall extend to or cover any assets other than the
assets subject to such Capitalized Leases or the purchase of which
was financed with such Debt;
(v) any Lien existing on any asset of any corporation at
the time such corporation becomes a Subsidiary of the Borrower and
not created in contemplation of such event;
(vi) any Lien on any asset of any corporation existing at
the time such corporation is merged or consolidated with or into
the Borrower or a Subsidiary of the Borrower and not created in
contemplation of such event;
(vii) any Lien existing on any asset prior to the
acquisition thereof by the Borrower or a Subsidiary of the
Borrower and not created in contemplation of such acquisition;
(viii) Liens on contract rights, accounts receivable arising
thereunder and fixed and capital assets used or to be used in
connection with the performance thereof securing obligations
incurred to finance such fixed or capital assets or investments
required under such contracts or obligations to subcontractors,
partners or other participants in respect of such contracts;
provided that accounts receivable subject to such Liens do not
exceed $50,000,000 in aggregate at any one time;
(ix) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt or other obligation secured by
any Lien permitted by any of the foregoing clauses of this
Section, provided that such Debt or other obligation is not
increased and is not secured by any additional assets;
(x) Liens not otherwise permitted by the foregoing clauses
of this Section securing Debt and other obligations in an
aggregate principal or face amount at any date not to exceed
$30,000,000; and
(xi) Uniform Commercial Code financing statements (Form
UCC-1 or other comparable form) signed in connection with
operating leases.
(b) Debt. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any
Debt other than:
(i) Debt owed to the Borrower or to a Subsidiary of the
Borrower;
(ii) Debt outstanding on the date hereof and identified as
"Not To Be Refinanced" on Schedule 4.01(x);
(iii) the Senior Debt;
(iv) Debt under the Loan Documents;
(v) Capitalized Leases and Debt incurred or assumed for
the purpose of financing all or a part of the cost of acquiring or
constructing any fixed or capital asset, not to exceed in the
aggregate $75,000,000 at any time outstanding;
(vi) in the case of the Borrower, Debt in respect of the
Retained Marriott Bonds, the ▇▇▇▇▇, the indenture in respect of
the ▇▇▇▇▇, as the same may be amended from time to time, and the
▇▇▇▇▇ Allocation Agreement;
(vii) Debt incurred to finance capital assets for specific
clients in the ordinary course of business in connection with
management contracts with such clients;
(viii) Debt in respect of obligations secured by Liens
permitted under Section 5.02(a)(viii);
(ix) Debt in respect of Hedge Agreements entered into to
hedge against currency, interest rate and commodity price risks of
the Borrower and its Subsidiaries arising from the operations and
financing of the Borrower and its Subsidiaries and not for
speculative purposes; and
(x) other Debt not permitted under clauses (i) through
(ix) above in an aggregate principal amount outstanding at any
time not to exceed $30,000,000.
(c) Mergers, Etc. Merge into or consolidate with any Person or
permit any Person to merge into it, or convey, transfer, lease or otherwise
dispose of (whether in one transaction or in a series of transactions) all
or substantially all of the assets (whether now owned or hereafter
acquired) of the Borrower and its Subsidiaries, taken as a whole, to any
Person.
(d) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business
from that described in the Proxy Statement for the Borrower and its
Subsidiaries or extensions thereof into new markets, services and product
areas in related businesses.
(e) Fiscal Year Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in its Fiscal Year (other than
changing its Fiscal Year end to August 31).
(f) Amendment of Certain Guarantor Contracts. Cancel or
terminate any material contracts entered into with the Guarantor for the
providing of business related support services, expertise or other
assistance to the Borrower or any of its Subsidiaries or consent to or
accept any cancellation or termination thereof, amend or otherwise modify
any such contract or give any consent, waiver or approval thereunder, waive
any default under or breach of any such contract, agree in any manner to
any other amendment, modification or change of any term or condition of any
such contract or take any other action in connection with any such contract
that would materially impair the value of the interest or rights of the
Borrower thereunder or that would materially impair the interest or rights
of the Administrative Agent or any Lender Party, or permit any of its
Subsidiaries to do any of the foregoing, except that such contracts may be
amended, waived or modified with the consent of the independent directors
of the Borrower; provided that the fees payable to the Guarantor under such
contracts (excluding guarantee fees) do not exceed 0.3% of gross annual
revenues of the Borrower and its Consolidated Subsidiaries in any Fiscal
Year.
SECTION 5.03. Reporting Requirements. From and after the Funding
Date, so long as any Advance shall remain unpaid, the Borrower will furnish to
the Lender Parties:
(a) Default Notice. As soon as possible and in any event within
five Business Days after a Responsible Officer of the Borrower has
knowledge of the occurrence of a Default continuing on the date of such
statement, a statement of a Responsible Officer of the Borrower setting
forth details of such Default and the action that the Borrower has taken
and proposes to take with respect thereto.
(b) Quarterly Financials. As soon as available and in any event
within 45 days after the end of each of the first three quarters of each
Fiscal Year (except that the first quarterly statements may be delivered
within 90 days after the end of the relevant quarter), a Consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of such
quarter, a Consolidated statement of income of the Borrower and its
Subsidiaries for such Fiscal Quarter and for the portion of the Borrower's
Fiscal Year ending at the end of such quarter and a Consolidated statement
of cash flows of the Borrower and its Subsidiaries for the portion of the
Borrower's Fiscal Year ending at the end of such quarter, setting forth,
in each case, in comparative form the corresponding figures for the
corresponding period of the preceding Fiscal Year, all in reasonable detail
and duly certified (subject to year-end adjustments) by the chief financial
officer of the Borrower as having been prepared in accordance with GAAP,
together with (i) a certificate of said officer stating that no Default has
occurred and is continuing or, if a Default has occurred and is continuing,
a statement as to the nature thereof and the action that the Borrower has
taken and proposes to take with respect thereto and (ii) a schedule in form
satisfactory to the Administrative Agent of the computations used by the
Borrower in determining compliance with the covenants contained in Sections
5.04(a) and (b).
(c) Annual Financials. As soon as available and in any event
within 90 days after the end of each Fiscal Year, a copy of the annual
report for such Fiscal Year for the Borrower and its Subsidiaries,
including therein the Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such Fiscal Year and Consolidated statements
of income and cash flows of the Borrower and its Subsidiaries for such
Fiscal Year, reported on by independent public accountants of
internationally and nationally recognized standing in a manner acceptable
to the Securities and Exchange Commission, together with (i) a certificate
of the chief financial officer of the Borrower stating that no Default has
occurred and is continuing or, if a default has occurred and is continuing,
a statement as to the nature thereof and the action that the Borrower has
taken and proposes to take with respect thereto and (ii) a schedule in form
satisfactory to the Administrative Agent of the computations used by the
Borrower in determining, as of the end of such Fiscal Year, compliance with
the covenants contained in Sections 5.04(a) and (b).
(d) Annual Forecasts. As soon as available and in any event
within five months after the beginning of each Fiscal Year of the Borrower,
forecasts prepared by management of the Borrower, in form satisfactory to
the Administrative Agent, of Consolidated balance sheets, statements of
income and cash flows of the Borrower and its Subsidiaries on an annual
basis for the Fiscal Year following such Fiscal Year then ended and for
each Fiscal Year thereafter until the seventh anniversary of the Funding
Date, setting forth in comparative form the corresponding figures for the
immediately preceding Fiscal Year, all in reasonable detail and form
satisfactory to the Administrative Agent, together with management's
strategic discussion and analysis thereof. Any forecasts or other
information provided pursuant to this Section to any Lender Party shall be
Confidential Information subject to the provisions of Section 8.09.
(e) ERISA Events and ERISA Reports. (i) Promptly and in any
event within 10 days after the Borrower or any ERISA Affiliate knows or has
reason to know that any ERISA Event has occurred that would reasonably be
expected to have a Material Adverse Effect, a statement of the chief
financial officer of the Borrower describing such ERISA Event and the
action, if any, that the Borrower or such ERISA Affiliate has taken and
proposes to take with respect thereto and (ii) on the date any records,
documents or other information must be furnished to the PBGC with respect
to any Plan pursuant to Section 4010 of ERISA in connection with a related
event or condition that would reasonably be expected to have a Material
Adverse Effect, a copy of such records, documents and information.
(f) Plan Terminations. Promptly and in any event within two
Business Days after receipt thereof by the Borrower or any ERISA Affiliate,
copies of each notice from the PBGC stating its intention to terminate any
Plan or to have a trustee appointed to administer any Plan that would
reasonably be expected to have a Material Adverse Effect.
(g) Plan Annual Reports. Promptly and in any event within 10
days after request of the Administrative Agent therefor, copies of each
Schedule B (Actuarial Information) to the most recently filed annual report
(Form 5500 Series) with respect to each Plan.
(h) Multiemployer Plan Notices. Promptly and in any event
within five Business Days after receipt thereof by the Borrower or any
ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of each
notice concerning (i) the imposition of Withdrawal Liability by any such
Multiemployer Plan that would reasonably be expected to have a Material
Adverse Effect, (ii) the reorganization or termination, within the meaning
of Title IV of ERISA, of any such Multiemployer Plan that would reasonably
be expected to have a Material Adverse Effect or (iii) the amount of
liability incurred, or that may be incurred, by the Borrower or any ERISA
Affiliate in connection with any event described in clause (i) or (ii).
(i) Litigation. Promptly after the commencement thereof, notice
of all actions, suits, investigations, litigation and proceedings before
any court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting the Borrower or any of its
Subsidiaries of the type described in Section 4.01(i), and promptly after
the occurrence thereof, notice of any adverse change in the status or the
financial effect on the Borrower or any of its Subsidiaries of the Disclosed
Litigation from that described on Schedule 4.01(i).
(j) Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and reports
that the Borrower sends to its stockholders generally, and copies of all
regular, periodic and special reports, and all registration statements,
that the Borrower or any of its Subsidiaries files with the Securities and
Exchange Commission or any governmental authority that may be substituted
therefor, or with any national securities exchange.
(k) Environmental Conditions. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of any
noncompliance by the Borrower or any of its Subsidiaries with any
Environmental Law or Environmental Permit that would reasonably be expected
to have a Material Adverse Effect.
(l) Other Information. Such other information respecting the
business, financial condition, results of operations, or prospects of the
Borrower and its Subsidiaries as any Lender Party (through the
Administrative Agent) may from time to time reasonably request.
SECTION 5.04. Financial Covenants. On and after the Funding
Date, so long as any Advance shall remain unpaid, the Borrower will:
(a) Interest Expense Coverage Ratio. Maintain, at the end of
each three-month fiscal period of the Borrower ending nearest to the last
day of each of the months set forth below, a ratio of Consolidated EBITDA
to Consolidated Interest Expense for the immediately preceding four Fiscal
Quarters (or, in the case of any Fiscal Quarter ending less than 12 months
after the Funding Date, such number of full Fiscal Quarters commencing on
or after the Funding Date as shall have ended on such date), in each case,
of the Borrower and its Subsidiaries, of at least the ratio set forth below
for such month (provided that this Section 5.04(a) shall not apply in
respect of any month set forth below the last day of which occurs less than
one full Fiscal Quarter after the Funding Date);
========================================================================
Fiscal Quarter End Ratio Fiscal Quarter End Ratio
------------------------------------------------------------------------
May, 1998 1:50:1.0 November, 2001 3.25:1.0
------------------------------------------------------------------------
August, 1998 1:50:1.0 February, 2002 3.25:1.0
------------------------------------------------------------------------
November, 1998 2.00:1.0 May, 2002 3.25:1.0
------------------------------------------------------------------------
February, 1999 2.00:1.0 August, 2002 3.50:1.0
------------------------------------------------------------------------
May, 1999 2.00:1.0 November, 2002 3.50:1.0
------------------------------------------------------------------------
August, 1999 2.25:1.0 February, 2003 3.50:1.0
------------------------------------------------------------------------
November, 1999 2.25:1.0 May, 2003 3.50:1.0
------------------------------------------------------------------------
February, 2000 2.25:1.0 August, 2003 3.50:1.0
------------------------------------------------------------------------
May, 2000 2.25:1.0 November, 2003 3.50:1.0
------------------------------------------------------------------------
August, 2000 2.75:1.0 February, 2004 3.50:1.0
------------------------------------------------------------------------
November, 2000 2.75:1.0 May, 2004 3.50:1.0
------------------------------------------------------------------------
February, 2001 2.75:1.0 August, 2004 3.50:1.0
------------------------------------------------------------------------
May, 2001 2.75:1.0 November, 2004 3.50:1.0
------------------------------------------------------------------------
August, 2001 3.25:1.0 February, 2005 3.50:1.0
========================================================================
(b) Cash Flow Leverage Ratio. Maintain, at the end of each
three month fiscal period of the Borrower ending nearest the last day of
each month set forth below, a Leverage Ratio of not more than the ratio set
forth below for such month (provided that this Section 5.04(b) shall not
apply in respect of any month set forth below the last day of which occurs
less than one year after the Funding Date):
========================================================================
Fiscal Quarter End Ratio Fiscal Quarter End Ratio
------------------------------------------------------------------------
February, 1999 6:30:1.0 May, 2002 3.90:1.0
------------------------------------------------------------------------
May, 1999 6.30:1.0 August, 2002 3.30:1.0
------------------------------------------------------------------------
August, 1999 5.40:1.0 November, 2002 3.30:1.0
------------------------------------------------------------------------
November, 1999 5.40:1.0 February, 2003 3.30:1.0
------------------------------------------------------------------------
February, 2000 5.40:1.0 May, 2003 3.30:1.0
------------------------------------------------------------------------
May, 2000 5.40:1.0 August, 2003 3.00:1.0
------------------------------------------------------------------------
August, 2000 5.00:1.0 November, 2003 3.00:1.0
------------------------------------------------------------------------
November, 2000 5.00:1.0 February, 2004 3.00:1.0
------------------------------------------------------------------------
February, 2001 5.00:1.0 May, 2004 3.00:1.0
------------------------------------------------------------------------
May, 2001 5.00:1.0 August, 2004 3.00:1.0
------------------------------------------------------------------------
August, 2001 3.90:1.0 November, 2004 3.00:1.0
------------------------------------------------------------------------
November, 2001 3.90:1.0 February, 2005 3.00:1.0
------------------------------------------------------------------------
February, 2002 3.90:1.0
========================================================================
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing (i) from and after the
date of this Agreement, in the case of clauses (a) and (e) below and (ii) from
and after the Funding Date, for all clauses of this Section 6.01:
(a) (i) the Borrower shall fail to pay any principal of any
Advance when the same shall become due and payable or (ii) the Borrower
shall fail to pay any interest on any Advance, or any fees payable under
any Loan Document, in each case under this clause (ii) which remain unpaid
beyond seven Business Days after the same becomes due and payable; or
(b) any representation or warranty made by the Borrower (or any
of its officers) under or in connection with any Loan Document shall prove
to have been incorrect in any material respect when made; or
(c) the Borrower shall fail to perform or observe any term,
covenant or agreement (i) contained in Section 2.13, 5.01(e) (in respect of
maintaining the existence of the Borrower only), 5.01(k), 5.02, 5.03(a) or
5.04 or (ii) contained in Section 5.01(f) or 5.03(b) through (l) if such
failure shall remain unremedied for 5 Business Days after written notice
thereof shall have been given to the Borrower by the Administrative Agent
or any Lender Party; or
(d) the Borrower shall fail to perform any other term, covenant
or agreement contained in any Loan Document on its part to be performed or
observed if such failure shall remain unremedied for 30 days after written
notice thereof shall have been given to the Borrower by the Administrative
Agent or any Lender Party; or
(e) the Borrower or any Substantial Subsidiary shall generally
not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against the Borrower or any Substantial Subsidiary seeking to adjudicate it
a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, or other similar official
for it or for any substantial part of its property and, in the case of any
such proceeding instituted against it (but not instituted by it), either
such proceeding shall remain undismissed or unstayed for a period of 60
days or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of
a receiver, trustee, custodian or other similar official for, it or any
substantial part of its property) shall occur; or the Borrower or any of
its Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (e); or
(f) any judgment or order for the payment of money in excess of
$25,000,000 shall be rendered against the Borrower or any Subsidiary and
either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (ii) there shall be any period of
30 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
or
(g) any non-monetary judgment or order shall be rendered against
the Borrower or any Subsidiary that would reasonably be expected to have a
Material Adverse Effect, and there shall be any period of 30 consecutive
days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or
(h) any provision of the Guaranty or any other Loan Document
after delivery thereof pursuant to Section 3.02 shall for any reason cease
to be valid and binding on or enforceable against the Loan Party to it, or
any such Loan Party shall so state in writing; or
(i) the Guarantor shall at any time for any reason cease to be
the record and beneficial owner, directly or indirectly, of at least 40.01%
of the shares of capital stock of the Borrower; or
(j) the Borrower shall at any time for any reason cease to be
the record and beneficial owner of 100% of the shares of capital stock of
Sodexho Operations; or
(k) (i) any Person or two or more Persons acting in concert
(other than the Guarantor and its Subsidiaries and Affiliates of the
Guarantor that control the Guarantor and Persons controlled by a Person who
controls the Guarantor) shall have acquired beneficial ownership (within
the meaning of Rule 13d-3 of the Securities and Exchange Commission under
the Securities Exchange Act of 1934), directly or indirectly, of Voting
Stock of the Borrower (or other securities convertible into such Voting
Stock) representing 50% or more of the combined voting power of all Voting
Stock of the Borrower or (ii) any Person or two or more Persons acting in
concert (other than the Guarantor and its Subsidiaries and Affiliates of
the Guarantor that control the Guarantor and Persons controlled by a Person
who controls the Guarantor) shall have acquired, by contract or otherwise,
control over Voting Stock of the Borrower (or other securities convertible
into such securities) representing 50% or more of the combined voting power
of all Voting Stock of the Borrower; or
(l) any ERISA Event shall have occurred with respect to a Plan
and the sum (determined as of the date of occurrence of such ERISA Event)
of the Insufficiency of such Plan and the Insufficiency of any and all
other Plans with respect to which an ERISA Event shall have occurred and
then exist (or the liability of the Borrower and the ERISA Affiliates
related to such ERISA Event) exceeds $25,000,000; or
(m) the Borrower or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated
with all other amounts required to be paid to Multiemployer Plans by the
Borrower and the ERISA Affiliates as Withdrawal Liability (determined as of
the date of such notification), exceeds $25,000,000; or
(n) the Borrower or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, and as a result of such reorganization or termination the aggregate
annual contributions of the Borrower and the ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or
termination occurs by an amount exceeding $25,000,000,
then, and in any such event, the Administrative Agent (i) shall at the
request, or may with the consent, of the Required Lenders, by notice to the
Borrower, declare the obligation of each Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at
the request, or may with the consent, of the Required Lenders, by notice to
the Borrower, declare the Notes, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to be forthwith due
and payable, whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest
or further notice of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of an actual or deemed entry of
an order for relief with respect to the Borrower under the Federal Bankruptcy
Code, (x) the obligation of each Lender to make Advances shall automatically
be terminated and (y) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. (a) Each Lender Party
hereby appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers and discretion under this
Agreement and the other Loan Documents as are delegated to the Administrative
Agent by the terms hereof and thereof, together with such powers and
discretion as are reasonably incidental thereto. As to any matters not
expressly provided for by the Loan Documents (including, without limitation,
enforcement or collection of the Notes), the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and
such instructions shall be binding upon all Lender Parties and all holders of
Notes; provided, however, that the Administrative Agent shall not be required
to take any action that exposes the Administrative Agent to personal liability
or that is contrary to this Agreement or applicable law. The Administrative
Agent agrees to give to each Lender Party prompt notice of each notice given
to it by the Borrower pursuant to the terms of this Agreement.
(b) The Arrangers shall have no powers or discretion under this
Agreement or any of the other Loan Documents and each of the Lender Parties
hereby acknowledges that the Arrangers have no liability under this Agreement
or under any of the other Loan Documents.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them
under or in connection with the Loan Documents, except for its or their own
gross negligence or willful misconduct. Without limitation of the generality
of the foregoing, the Administrative Agent: (a) may treat the payee of any
Note as the holder thereof until the Administrative Agent receives and accepts
an Assignment and Acceptance entered into by the Lender that is the payee of
such Note, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 8.07; (b) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith
by it in accordance with the advice of such counsel, accountants or experts;
(c) makes no warranty or representation to any Lender Party and shall not be
responsible to any Lender Party for any statements, warranties or
representations (whether written or oral) made in or in connection with the
Loan Documents; (d) shall not have any duty to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or conditions of
any Loan Document on the part of the Borrower or to inspect the property
(including the books and records) of the Borrower; (e) shall not be
responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telegram or
telecopy) believed by it to be genuine and signed or sent by the proper party
or parties.
SECTION 7.03. Societe Generale and Affiliates. With respect to
its Commitment, the Advance made by it and the Note issued to it, Societe
Generale shall have the same rights and powers under the Loan Documents as any
other Lender Party and may exercise the same as though it were not the
Administrative Agent; and the term "Lender Party" or "Lenders Parties" shall,
unless otherwise expressly indicated, include Societe Generale in its
individual capacity. Societe Generale and its affiliates may accept deposits
from, lend money to, act as trustee under indentures of, accept investment
banking engagements from and generally engage in any kind of business with,
any Loan Party, any of its Subsidiaries and any Person who may do business with
or own securities of any Loan Party or any such Subsidiary, all as if Societe
Generale were not the Administrative Agent and without any duty to account
therefor to the Lender Parties.
SECTION 7.04. Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon the
Administrative Agent, the Arrangers or any other Lender Party and based on the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender Party also acknowledges
that it will, independently and without reliance upon the Administrative
Agent, the Arrangers or any other Lender Party and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. Each Lender Party severally
agrees to indemnify the Administrative Agent (to the extent not promptly
reimbursed by the Borrower) from and against such Lender Party's ratable share
(determined as provided below) of any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on,
incurred by, or asserted against the Administrative Agent in any way relating
to or arising out of the Loan Documents or any action taken or omitted by the
Administrative Agent under the Loan Documents; provided, however, that no
Lender Party shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender Party
agrees to reimburse the Administrative Agent promptly upon demand for its
ratable share of any costs and expenses (including, without limitation, fees
and expenses of counsel) payable by the Borrower under Section 8.04, to the
extent that the Administrative Agent is not promptly reimbursed for such costs
and expenses by the Borrower. For purposes of this Section 7.05, the Lender
Parties' respective ratable shares of any amount shall be determined, at any
time, according to the sum of (a) the aggregate principal amount of the
Advances outstanding at such time and owing to the respective Lender Parties
and (b) the Commitments of the respective Lender Parties at such time. The
failure of any Lender Party to reimburse the Administrative Agent promptly
upon demand for its ratable share of any amount required to be paid by the
Lender Party to the Administrative Agent as provided herein shall not relieve
any other Lender Party of its obligation hereunder to reimburse the
Administrative Agent for its ratable share of such amount, but no Lender Party
shall be responsible for the failure of any other Lender Party to reimburse
the Administrative Agent for such other Lender Party's ratable share of such
amount. Without prejudice to the survival of any other agreement of any
Lender Party hereunder, the agreement and obligations of each Lender Party
contained in this Section 7.05 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the other Loan
Documents.
SECTION 7.06. Successor Agents. The Administrative Agent may
resign at any time by giving written notice thereof to the Lender Parties and
the Borrower. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor Administrative Agent with, unless an Event of
Default shall have occurred and be continuing, the consent of the Borrower,
which consent shall not be unreasonably withheld or delayed. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lender Parties, appoint a successor
Administrative Agent with, unless an Event of Default shall have occurred and
be continuing, the consent of the Borrower, which consent shall not be
unreasonably withheld or delayed, which shall be a commercial bank organized
under, or having a branch authorized to operate under, the laws of the United
States or of any State thereof and having a combined capital and surplus of at
least $250,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall succeed to and become vested with all the rights,
powers, discretion, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its
duties and obligations under the Loan Documents. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under
this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes or any other Loan Document, nor
consent to any departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Borrower and
the Required Lenders, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given;
provided, however, that (a) no amendment, waiver or consent shall, unless in
writing and signed by the Requisite Lenders, waive any of the conditions
specified in Section 3.01 or 3.02, (b) no amendment, waiver or consent shall,
unless in writing and signed by all of the Lenders (other than any Lender
Party that is, at such time, a Defaulting Lender), do any of the following at
any time: (i) change the number of Lenders or the percentage of (x) the
Commitments or (y) the aggregate unpaid principal amount of the Advances that,
in each case, shall be required for the Lenders or any of them to take any
action hereunder, (ii) reduce or limit the obligations of the Guarantor under
Section 1 of the Guaranty or otherwise limit the Guarantor's liability with
respect to the Obligations owing to the Administrative Agent and the Lender
Parties, except as expressly permitted therein, or (iii) amend this Section
8.01 and (c) no amendment, waiver or consent shall, unless in writing and
signed by the Required Lenders and each Lender that has a Commitment or an
Advance outstanding under the Facility if affected by such amendment, waiver
or consent, (i) increase the Commitment of such Lender or subject such Lender
to any additional obligations, (ii) reduce the principal of, or interest on,
the Note held by such Lender or any fees or other amounts payable hereunder to
such Lender, or (iii) postpone any date fixed under Section 2.03 for any
payment of principal of or fixed under Section 2.05 or 2.06 for any payment of
any interest on, the Note held by such Lender or fixed under Section 2.07 for
payment of any fees payable hereunder to such Lender; provided further that no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopy communication)
and mailed, telecopied or delivered
if to the Borrower:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇, Treasurer
Sodexho Marriott Operations, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
and:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
if to any Initial Lender, at its Domestic Lending Office specified opposite
its name on Schedule I hereto; if to any other Lender Party, at its Domestic
Lending Office specified in the Assignment and Acceptance pursuant to which it
became a Lender Party; and
if to the Administrative Agent:
1221 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
or, as to the Borrower or the Administrative Agent, at such other address as
shall be designated by such party in a written notice to the other parties
and, as to each other party, at such other address as shall be designated by
such party in a written notice to the Borrower and the Administrative Agent.
All such notices and communications shall be effective (i) if given by
telecopy, when transmitted to the telecopy number referred to in this Section
and confirmation of receipt is received, (ii) if given by mail, 72 hours after
such communication is deposited in the mails with postage prepaid, addressed
as aforesaid or (iii) if given by any other means, when delivered at the
address referred to in this Section, except that notices and communications to
the Administrative Agent pursuant to Article II or VII shall not be effective
until received by the Administrative Agent. Delivery by telecopier of an
executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed counterpart
thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender Party or the Administrative Agent to exercise, and no delay in
exercising, any right hereunder or under any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude
any other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand (i) pursuant to a written budget mutually satisfactory to the
Borrower and the Arrangers (it being understood that such budget is not a
maximum cap on any expenses payable by the Borrower specified in this Section
8.04, or otherwise), all reasonable costs and expenses of the Administrative
Agent and the Arrangers in connection with the preparation, execution,
delivery, administration, modification, waiver and amendment of the Loan
Documents (including, without limitation, (A) all due diligence, syndication,
transportation, computer, duplication, audit, insurance and consultant fees
and expenses and (B) the reasonable fees and expenses of counsel for the
Administrative Agent and the Arrangers with respect thereto, with respect to
advising the Administrative Agent and the Arrangers as to their rights and
responsibilities, or the perfection, protection or preservation of rights or
interests, under the Loan Documents, with respect to negotiations with the
Borrower or with other creditors of the Borrower or any of its Subsidiaries
arising out of any Default or any events or circumstances that may give rise
to a Default and with respect to presenting claims in or otherwise
participating in or monitoring any bankruptcy, insolvency or other similar
proceeding involving creditors' rights generally and any proceeding ancillary
thereto) and (ii) after the occurrence of an Event of Default, all reasonable
costs and expenses of the Administrative Agent, the Arrangers and the Lender
Parties in connection with the enforcement of the Loan Documents, whether in
any action, suit or litigation, any bankruptcy, insolvency or other similar
proceeding affecting creditors' rights generally (including, without
limitation, the reasonable fees and expenses of counsel for the Administrative
Agent, the Arrangers and each Lender Party with respect thereto).
(b) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, each Arranger, each Lender Party and each of their
Affiliates and their officers, directors, employees, agents and advisors
(each, an "Indemnified Party") from and against any and all claims, damages,
losses, liabilities and expenses (including, without limitation, reasonable
fees and expenses of counsel) that may be incurred by or asserted or awarded
against any Indemnified Party, in each case arising out of or in connection
with or by reason of any investigation, litigation or proceeding or
preparation of a defense in connection therewith arising out of or relating to
(i) the Facility, the actual or proposed use of the proceeds of the Advances,
the Loan Documents or any of the transactions contemplated thereby or (ii) the
actual or alleged presence of Hazardous Materials on any property of the
Borrower or any of its Subsidiaries or any Environmental Action relating in
any way to the Borrower or any of its Subsidiaries, except to the extent such
claim, damage, loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 8.04(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Borrower, its
directors, shareholders or creditors or an Indemnified Party or any
Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. The Borrower also agrees
not to assert any claim against the Administrative Agent, any Arranger, any
Lender Party or any of their Affiliates, or any of their respective officers,
directors, employees, attorneys and agents, on any theory of liability, for
consequential damages arising out of or otherwise relating to the Facility,
the actual or proposed use of the proceeds of the Advances, the Loan Documents
or any of the transactions contemplated thereby.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender Party other than on the last day of the Interest Period for such
Advance, as a result of a payment or Conversion pursuant to Section 2.08(b)(i)
or 2.09(d), acceleration of the maturity of the Notes pursuant to Section 6.01
or for any other reason, the Borrower shall, upon demand by such Lender Party
(with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender Party any amounts required
to compensate such Lender Party for any losses, costs or expenses that it may
reasonably incur as a result of such payment, including, without limitation,
any loss, cost or expense (but excluding loss of margin after the date of such
payment or conversion) incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by any Lender Party to fund or maintain
such Advance.
(d) If any Loan Party fails to pay when due any costs, expenses
or other amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may be
paid on behalf of such Loan Party by the Administrative Agent or any Lender
Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of
the Borrower hereunder or under any other Loan Document, the agreements and
obligations of the Borrower contained in Sections 2.09 and 2.11 and this
Section 8.04 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under any of the other Loan Documents.
(f) The Lender Parties acknowledge that (i) prior to the Funding
Date, the obligations of the Borrower for costs, expenses, fees and
indemnification under or in connection with this Agreement shall be the
responsibility of the Borrower and the Guarantor pursuant to the terms of the
Commitment Letter dated November 26, 1997 entered into by such parties with
▇▇▇▇▇▇ and the Arrangers and (ii) all amounts due and payable by the Borrower
prior to the Funding Date (including pursuant to Section 3.01(b)) shall be
advanced by the Guarantor, provided that nothing contained in this paragraph
(f) shall limit the liability of the parties hereto as set forth in the terms
of said Commitment Letter.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender Party and each of its respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Lender Party or
such Affiliate to or for the credit or the account of the Borrower against any
and all of the Obligations of the Borrower now or hereafter existing under
this Agreement and the Note (if any) held by such Lender Party, irrespective
of whether such Lender Party shall have made any demand under this Agreement or
such Note and although such obligations may be unmatured. Each Lender Party
agrees promptly to notify the Borrower after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender Party and
its respective Affiliates under this Section are in addition to other rights
and remedies (including, without limitation, other rights of set-off) that
such Lender Party and its respective Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall be binding
upon and inure to the benefit of the Borrower, the Administrative Agent, each
Lender Party and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lender Parties.
SECTION 8.07. Assignments and Participations. (a) Each Lender
may assign to one or more Eligible Assignees all or a portion of its rights
and obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Advances owing to it and the Note held by it);
provided, however, that (i) except in the case of an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of the
Commitment or Advances of the assigning Lender being assigned pursuant to each
such assignment (determined as of the date of the Assignment and Acceptance
with respect to such assignment) shall in no event be less than $15,000,000
(or $5,000,000, in the case of an assignment to an existing Lender), (ii) each
such assignment shall be to an Eligible Assignee and (iii) the parties to each
such assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance,
together with any Note or Notes subject to such assignment and a processing
and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in such Assignment and Acceptance,
(x) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto).
(c) By executing and delivering an Assignment and Acceptance,
the Lender Party assignor thereunder and the assignee thereunder confirm to
and agree with each other and the other parties hereto as follows: (i) other
than as provided in such Assignment and Acceptance, such assigning Lender
Party makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or any other Loan Document or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of, this
Agreement or any other Loan Document or any other instrument or document
furnished pursuant hereto or thereto; (ii) such assigning Lender Party makes
no representation or warranty and assumes no responsibility with respect to
the financial condition of the Borrower or any other Loan Party or the
performance or observance by the Borrower of any of its obligations under any
Loan Document or any other instrument or document furnished pursuant thereto;
(iii) such assignee confirms that it has received a copy of this Agreement,
together with copies of the financial statements referred to in Section 4.01
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance upon
the Administrative Agent, such assigning Lender Party or any other Lender
Party and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Administrative Agent
to take such action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to the Administrative
Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent acting for this purpose (but only
for this purpose) as the agent of the Borrower, shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lender Parties and the Commitment of, and principal amount of
the Advances owing to, each Lender Party from time to time (the "Register").
The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Administrative Agent and the
Lender Parties shall treat each Person whose name is recorded in the Register
as a Lender Party hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the Borrower or any Lender Party at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender Party and an assignee, together with any Note subject to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower. In the case of any assignment by a Lender, within 15 Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the
surrendered Note a new Note to the order of such Eligible Assignee in an
amount equal to the Commitment or, after the Funding Date, the principal
amount of the outstanding Advance assumed by it under the Facility pursuant to
such Assignment and Acceptance and, if the assigning Lender has retained a
Commitment or a portion of the principal amount of its outstanding Advance
under the Facility, a new Note to the order of the assigning Lender in an
amount equal to the Commitment or portion of such Advance retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note, shall be
dated the effective date of such Assignment and Acceptance and shall otherwise
be in substantially the form of Exhibit A hereto.
(f) No assignee, participant or other transferee of any Lender
Party's rights shall be entitled to receive any greater payment under Section
2.09 or 2.11 than such Lender Party would have been entitled to receive with
respect to the rights transferred, unless such transfer is made with the
Borrower's prior written consent or by reason of the provisions of Section
2.09 or 2.11 requiring such Lender to designate a different Applicable Lending
Office under certain circumstances or at a time when the circumstances giving
rise to such greater payment did not exist.
(g) Each Lender Party may sell participations to one or more
Persons (other than the Borrower or any of its Affiliates) in or to all or a
portion of its rights, obligations, or rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Advances owing to it and the Note (if any) held by it); provided, however,
that (i) such Lender Party's obligations under this Agreement (including,
without limitation, its Commitment) shall remain unchanged, (ii) such Lender
Party shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender Party shall remain the
holder of any such Note for all purposes of this Agreement, (iv) the Borrower,
the Administrative Agent and the other Lender Parties shall continue to deal
solely and directly with such Lender Party in connection with such Lender
Party's rights and obligations under this Agreement and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of any Loan Document, or any consent to any departure
by the Borrower therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Note or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation, postpone any date fixed under Section 2.04 for any payment of
principal of, or fixed under Section 2.05 or 2.06 for any payment of interest
on the Note or fixed under Section 2.07 for any payment of any fees payable
hereunder, in each case to the extent subject to such participation.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or
participant shall agree in writing to preserve the confidentiality of any
Confidential Information received by it from such Lender Party in accordance
with Section 8.09 hereof.
(i) Notwithstanding any other provision set forth in this
Agreement, any Lender Party may at any time create a security interest in all
or any portion of its rights under this Agreement (including, without
limitation, the Advances owing to it and the Note held by it) in favor of any
Federal Reserve Bank in accordance with Regulation A of the Board of Governors
of the Federal Reserve System.
SECTION 8.08. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.09. Confidentiality. (a) Neither the Administrative
Agent nor any Lender Party shall disclose any Confidential Information to any
Person without the consent of the Borrower, other than (i) to the
Administrative Agent's or such Lender Party's Affiliates and their officers,
directors, employees, agents and advisors who need to know such Confidential
Information in connection with the Administrative Agent's or such Lender
Party's evaluation or administration of the Facility and to actual or
prospective Eligible Assignees and participants who have agreed in writing to
be bound by this Section, (ii) as required by any law, rule or regulation or
judicial process, provided that the Administrative Agent or any Lender Party
so required to disclose any Confidential Information will, to the extent
permitted under applicable law, (x) notify the Borrower immediately of the
existence, terms and circumstances surrounding such requirement, (y) consult
with the Borrower on the advisability of taking legally available steps to
resist or narrow such requirement and (z) if disclosure of such Confidential
Information is legally required, furnish only such portion of the Confidential
Information as it is legally compelled to disclose and exercise commercially
reasonable efforts to obtain an order or other reliable assurance that
confidential treatment will be accorded to the disclosed Confidential
Information, and (iii) as requested or required by any state, federal or
foreign authority or examiner regulating banks or banking.
(b) The Administrative Agent and each Lender Party hereby
acknowledges and agrees that, in the event of any breach by it of this Section
8.09, the Borrower and the Guarantor would be irreparably and immediately
harmed and could not be made whole by monetary damages. Accordingly, the
Administrative Agent and each Lender Party agrees, to the fullest extent it
may effectively do so under applicable law, that, in addition to any other
remedy to which the Borrower and the Guarantor may be entitled at law or in
equity, the Administrative Agent and each Lender Party shall be entitled to an
injunction or injunctions (without the posting of any bond and without proof
of actual damages) to prevent breaches or threatened breaches of this Section
8.09 and/or to compel specific performance of this Section 8.09, and that none
of the Administrative Agents, any Lender Party or any of their respective
representatives will oppose the granting of such relief.
SECTION 8.10. No Reliance on Margin Stock. Each of the Lender
Parties represents to the Administrative Agent and each of the other Lender
Parties that it in good faith is not relying upon any "margin stock" (as
defined in Regulation U) as collateral in the extension or maintenance of the
credit provided for in this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of any New York State court or federal court
of the United States of America sitting in New York City, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or any of the other Loan Documents to which it is a party,
or for recognition or enforcement of any judgment, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any
such New York State court or, to the extent permitted by law, in such federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement or any of
the other Loan Documents in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or any
of the other Loan Documents to which it is a party in any such New York State
or federal court. Each of the parties hereto hereby irrevocably waives, to
the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
SECTION 8.12. Governing Law. This Agreement and the Notes shall
be governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the
Administrative Agent and the Lender Parties irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to any of the Loan
Documents, the Advances or the actions of the Administrative Agent or any
Lender Party in the negotiation, administration, performance or enforcement
thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as of
the date first above written.
MARRIOTT INTERNATIONAL, INC. (to be
renamed SODEXHO MARRIOTT SERVICES,
INC.)
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
SOCIETE GENERALE, as Administrative
Agent
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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Title: Vice President
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW
YORK, as Documentation Agent
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
Initial Lenders
SOCIETE GENERALE
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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Title: Vice President
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW
YORK
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
THE BANK OF NEW YORK
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ J.R. Trimble
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Title: Senior Relationship
Manager
BANQUE NATIONALE DE PARIS
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Senior Vice President
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
BANQUE PARIBAS
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Vice President
CIBC INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Title: Executive Director
CAISSE CENTRALE DES BANQUES
POPULAIRES
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Directeur Adjoint
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Fonde de Pouvoirs
Principal
THE CHASE MANHATTAN BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
CITIBANK, N.A.
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
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Title: Attorney-in-Fact
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇
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Title: Vice President
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Deputy General Manager
CREDIT AGRICOLE INDOSUEZ
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title:
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Vice President
CREDIT COMMERCIAL DE FRANCE
NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: AVP
/s/ ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: SVP
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Olivier Perrain
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Title: First Vice President
DG BANK, DEUTSCHE GENOSSENSCHAFTSBANK
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Senior Vice President
By /s/ S. Winott
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Title: Assistant Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Assistant Vice President
FIRST UNION NATIONAL BANK
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Senior Vice President
MELLON BANK, N.A.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Vice President
NATEXIS BANQUE
By /s/ ▇▇▇▇▇▇ ▇. van Tulder
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Title: Vice President
By /s/ ▇▇▇▇ ▇▇▇▇
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Title: Assistant Vice President
NATIONSBANK, N.A.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Vice President
▇▇▇▇▇ BANK N.A.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
THE ROYAL BANK OF SCOTLAND plc
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President